Monthly Newsletter Archives 2020

Notice and Announcements

Last Call For Award Nominations: Galen Sparks and Susan Rocha Awards for Outstanding Public Service

Galen Sparks served as an assistant city attorney and dedicated public servant for the City of Dallas for over 27 years. He distinguished himself in a variety of areas of municipal law and generously shared his time and expertise in a way that substantially enhanced the professionalism of his fellow municipal lawyers. The TCAA “Galen Sparks Award for Outstanding Public Service” is intended to recognize and honor a current or former city attorney or assistant city attorney for significant and distinguished career achievements in the field of municipal law.

The TCAA board grants one award each year for an in-house city attorney or assistant city attorney.

Susan Rocha served as an assistant city attorney for the City of San Antonio early in her career, and went on to be a trailblazer in municipal law. She served as president of both the Texas City Attorneys Association and the International Municipal Lawyers Association, and was a mentor and role model for many attorneys in the field due to her hard work, many achievements, and – of course – irrepressible personality. The TCAA “Susan Rocha Award for Outstanding Public Service” is intended to recognize and honor a current or former city attorney or assistant city attorney for significant and distinguished career achievements in the field of municipal law.

The TCAA board grants one award each year for outside counsel serving as a city attorney or assistant city attorney.

The recipients of these awards will be honored at the TCAA Summer Conference. The deadline to submit a nomination is April 17, 2020. Downloadable criteria and the nomination form are available HERE.

2020 TCAA Summer Conference via Live Webcast

The Texas City Attorneys Association (TCAA) is proud to announce the 2020 Summer Conference, scheduled June 17-19.  In response to current events, the live, in-person program in South Padre Island is cancelled. However, we will continue virtually, via live Webcast.
The conference is FREE for TCAA members and $80 for non-members. Register here.

The TCAA Summer Conference is the best CLE program created specifically for municipal lawyers. Earn up to 13.5 hours MCLE credit (including 2 ethics hours).

Topics Include:

• COVID-19 Update
• Cybersecurity
• Purchasing
• Open Government
• Regulating Noise
• Building Codes
• Technology in the Workplace
• Legislative Advocacy
• Case Updates
• Flood Mitigation Planning and Funding
• Utility-Related Updates
• Credit Access Business Regulation
• And More!

2020 TCAA Fall Conference: Call for Speakers

The Texas City Attorneys Association invites all attorneys interested in presenting at the 2020 TCAA Fall Conference, to submit your ideas to Christy Drake-Adams at [email protected] by May 31, 2020.  This year’s conference will be held on October 15, 2020. Questions? Contact Christy Drake-Adams at [email protected] or 512-231-7400.

SAVE THE DATE – UPCOMING TCAA EVENT!

The 2020 TCAA Fall Conference will take place on October 15, and will be held in conjunction with the TML Annual Conference.

Temporary MCLE Extension for Some Texas Attorneys

The COVID-19 pandemic is making it difficult for some attorneys to complete their MCLE requirements. In response, the State Bar of Texas has granted the following automatic extensions:

• March, April, or May 2020 compliance deadline: 60-day extension
• Missed January or February 2020 compliance deadlines: 60-day extension to prevent the assessment of further fees
• Attorneys subject to suspension for failing to comply with MCLE requirements in November or December 2019: One-month extension

TCAA Online Membership Directory

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here: 
http://members.tml.org/Web/Online/Directories/TCAA_Directory.aspx

IMLA Membership

Membership with IMLA doesn’t just mean discounts to their events. It’s much more than that. Click here to view a quick video about IMLA membership

Continuing Legal Education

2020 Riley Fletcher and 2019 TCAA Summer and Fall Conferences 

These TCAA online seminars are FREE, allowing TCAA members who are city attorneys, assistant city attorneys, or attorneys who regularly practice municipal law to view each video from the conference in a single–session format. Viewing a session allows attorneys to receive participatory CLE credit with the State Bar. To view available seminars, please visit tcaaonlineseminars.org. (Use the case-sensitive password “FreeCLE” to gain access to the sessions.)

If you would like to have an article considered for publication in the TCAA newsletter, please send your request to Christy Drake-Adams at [email protected].

TCAA/TML Legal Defense Program: Amicus Briefs and Comments Filed

TCAA, in conjunction with the Texas Municipal League, files amicus briefs and comments in support of cities on many issues. To keep up to date on the status of these issues, go to: https://www.tml.org/DocumentCenter/View/2553/AmicusBriefUpdate  

Recent Texas Cases of Interest to Cities

Note: Included cases are from March 11, 2020 through April 10, 2020.

Insurance: Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, No. 18-0469, 2020 WL 1492412 (Tex. Mar. 27, 2020). While not a governmental entity case, this case involves standing to sue under a personal injury protection policy (PIP) and the distinction made with incurred rates vs. list rates of the medical providers. This can affect not only litigation, but also those entities that are self-insured.

Beasley was injured in a car accident and his treatment displayed in the medical provider’s invoices totaled $2,662.54. Beasley had health coverage with BlueCross BlueShield (BCBS) which negotiated a provider rate of $1,068.90.  The medical providers did not attempt to recover or hold him liable for the difference. Beasley also had a PIP policy through Farmers Texas County Mutual Insurance Company (Farmers). The policy stated it would pay benefits because of bodily injury, including reasonable medical expenses. Beasley made a claim but sought the list/invoiced rates. Farmers paid Beasley $1,068.90. He sued for the difference alleging breach of contract and asserting the policy covers reasonable medical costs, regardless of any reductions the providers agreed to accept later. Farmers asserted the policy was for medical expenses incurred. The trial court granted Farmers’ plea to the jurisdiction but the court of appeals reversed holding the breach of contract claim was sufficient to confer jurisdiction. Farmers appealed.

Standing is a requirement of jurisdiction and Beasley must establish an injury. Beasley was not harmed as the medical providers did not attempt to charge him for the difference. He was not able to claim any unreimbursed, out-of-pocket medical expenses. Nor does Beasley assert that any of his medical providers withheld treatment as a result of the adjusted bills. The fact Beasley felt personally aggrieved by the lack of payment does not mean he suffered an injury. [Comment: yes, he actually made that argument.] Beasley also asserts Farmers impermissibly considered a collateral source in determining how much to reimburse BCBS’s payments to Beasley’s medical providers. But a health insurer’s negotiated discounts do not constitute a collateral source of benefits to the insured in this context. Adjustments in the amount of charges to arrive at the amount owed is a benefit to the insurer (one it obtains from the provider for itself), not for the insured. As a result, the collateral source rule is inapplicable in Beasley’s case. Beasley, therefore, was not able to establish standing to bring suit.*

Bond Requirements: City of Conroe v. San Jacinto River Auth., No. 18-0989, 2020 WL 1492411 (Tex. Mar. 27, 2020).This is a case brought under the Expedited Declaratory Judgment Act (EDJA) involving proper compliance with bond requirements by the local government. The EDJA provides an “issuer” of “public securities” an expedited declaratory procedure to establish the “legality and validity” of public securities and “public security authorizations.” Tex. Gov’t Code § 1205.021.

The Lone Star Groundwater Conservation District was created to address concerns about inhabitants of an area and their reliance on groundwater drawn from the Gulf Coast Aquifer. In 2008, the conservation district required all large-volume groundwater users—including the cities—to develop and implement plans for reducing their usage substantially. Mandatory groundwater usage cutbacks took effect in January 2016. Respondent San Jacinto River Authority (SJRA), a legislatively-created conservation and reclamation district, developed a groundwater reduction plan (GRP) to draw surface water from Lake Conroe, treat the water, and sell it to large-volume users. SJRA issued seven series of bonds between 2009 and 2016 that had an outstanding principal balance of approximately $520 million. SJRA entered into bilateral GRP contracts with about 80 water-system operators. The GRP rates are governed entirely by contract. Several cities sued the conservation district and the suit expanded to include SJRA. Several cities asserted they would not pay. SJRA filed suit under the EDJA seeking a declaration regarding the contracts and rates. The cities opted into the suit, but then filed pleas to the jurisdiction alleging SJRA did not seek a declaration as to “the legality and validity” of a “public security authorization,” but instead sought to litigate what are substantively suits on contracts that properly lie outside the statute. The trial court denied the pleas and the cities appealed. The intermediary court of appeals held primarily for SJRA and the cities appealed to the Texas Supreme Court.

The EDJA was enacted to “stop ‘the age old practice allowing one disgruntled taxpayer to stop the entire bond issue simply by filing suit.’” The court went through an analysis of the EDJA and its purpose in considering jurisdiction and definitions. SJRA and the attorney general contend the GRP contracts, rate order, and rates themselves are public security authorizations because they are all connected to the bonds SJRA issued to finance the GRP project. The court first held the authority declaration concerns the legality and validity of SJRA’s contracts with GRP participants, as GRP rate orders and rates are creatures of the contracts. As a result, the EDJA permits the trial court to exercise jurisdiction over this declaration. However, the court held the rate orders and rates lacked a proper connection with the bonds. Even though the rate order and rates may affect the amount SJRA is paid under the contracts, neither has an authorizing connection with the public securities. The EDJA treats execution of a contract to be connected but does not treat compliance with a contract as a public security authorization. As a result, SJRA can seek a declaration the contract was validly executed, but not whether it complied with the contract. As a result, the EDJA confers jurisdiction to declare whether the GRP contracts (as public security authorizations) are legal and valid, but it does not extend to declaring whether a specific rate amount set in a particular rate order is valid as it is controlled by the contract. SJRA may not obtain EDJA declarations concerning the cities’ in personam rights and liabilities. The EDJA permits only in rem declarations concerning property rights.*

Workers’ Compensation: Orozco v. County of El Paso, No. 17-0381, 2020 WL 1321473 (Tex. Mar. 20, 2020). This is a workers’ compensation case, but the key issue is whether the deputy who died in a vehicular accident while driving his assigned patrol car was in the course and scope of his employment. The Texas Supreme Court held he was within the course and scope.

Orozco was killed instantly when a wheel from another vehicle came loose and crashed through his patrol car’s windshield on the expressway. At the time of his death, Orozco was a sergeant with the El Paso County Sheriff’s Department. However, Sergeant Orozco was not scheduled to work for the department that night. He instead worked an extra-duty assignment at a University of Texas El Paso (UTEP) football game. Because the work at UTEP was extra-duty employment (and not considered off-duty) and might entail the use of an officer’s law-enforcement powers under the policy manual, Sergeant Orozco wore his uniform, badge, and gun to the football game. He also drove there in his assigned patrol car. After completing his work at the UTEP football game, Sergeant Orozco also used the patrol car for his return trip home, which is when the accident occurred. His surviving spouse filed a claim under the Worker’s Compensation Act. The county asserts the claim should be denied. All procedural administrative steps were taken and suit was filed. The court of appeals ruled in favor of the county and the widow appealed.

The Texas Supreme Court recently held the question of whether an officer is on or off duty does not determine whether the officer’s conduct falls within the scope of his employment. “Peace officers are . . . relatively unique among governmental employees as they may be required to spring into action at a moment’s notice, even while off duty.” Because a peace officer is always a peace officer, even during off-duty hours, the capacity in which an officer is acting can be nebulous. While the parties made arguments regarding his status at the football game, the court held that was not the focus. It is Sergeant Orozco’s use of his patrol car for travel from that approved employment to his home that is at issue.

As a general rule, travel to and from work does not originate in the employer’s business and, in some instances, is expressly excluded from the course and scope of employment by statute. While exceptions may have previously existed for travel that is an integral or required part of the employee’s work, the legislature has since codified its definition of course-and-scope which controls. The court analyzed a lot of the record and testimony and determined that Orozco’s “use” of the vehicle was authorized and not purely for personal use. Further, the statutory test asks whether the activity producing injury relates to, originates in, and furthers the employer’s business affairs. The operation of a marked patrol car on the public streets is an activity that clearly relates to and originates in the work or profession of the El Paso County Sheriff’s Department. Patrolling El Paso’s roads is a significant part of the department’s work. Moreover, having uniformed deputies in marked patrol cars on El Paso streets furthers the work of the sheriff in preserving the peace.

The statutory definition of the term “course and scope of employment” excludes two types of travel—the coming-and-going rule and the dual-purpose rule. Travel to and from work is governed solely by the coming-and-going rule, while all other travel is subject to the dual-purpose rule. Here, it appears undisputed that Orozco “contacted the Sheriff’s dispatch as he left the extra-duty assignment that he was in route to his home and available for calls.” After analyzing numerous parts of the record which made clear he was subject to call while driving home and was required to respond to emergencies if observed, the court concluded that the authorized operation of Orozco’s patrol car to and from the approved extra-duty assignment was a law enforcement activity similar to his on-duty work for the county. As a result, his death occurred during the course and scope of his employment.*

Litigation/Discovery Issues: In re Mobile Mini, Inc., No. 18-1200, 2020 WL 1224169 (Tex. Mar. 13, 2020). This is a mandamus case that will be of interest mainly to litigators. The Texas Supreme Court granted mandamus and ordered the trial court to allow the designation of a responsible third party even though the statute of limitations had expired.

Covarrubias’s pinky finger was injured when a wind gust blew the door of a construction trailer closed on his hand. Mobile Mini owned the trailer, but had leased it to Nolana Self Storage, LLC, the owner of the construction site. Covarrubias sued Mobile Mini just before the statute of limitations expired, but did not sue Nolana. Mobile Mini’s discovery responses identified Nolana as a potentially responsible third party. Mobile Mini filed a motion to designate Nolana as a responsible third party, but no hearing was set immediately. Meanwhile, Nolana (who had been brought in) obtained a summary judgment that claims against it were time-barred and it was dismissed. Covarrubias later objected to Mobile Mini’s attempt to designate Nolana as a responsible third-party given the time bar. The trial court refused to allow Mobile Mini to designate Nolana. The court of appeals denied Mobile Mini’s mandamus petition without substantive comment. Mobile Mini brought this mandamus action in the Texas Supreme Court.

The court went through a lengthy analysis of Chapter 33 of the Texas Civil Practice and Remedies Code. The court held Mobile Mini’s disclosure was timely because under the Texas Rules of Civil Procedure, it was not obligated to disclose potentially responsible third parties until its discovery responses were due. Because Covarrubias waited almost two years to sue Mobile Mini, the response deadline for the disclosures fell after limitations expired. Mobile Mini did not engage in any dilatory or stall tactics to game the system, but instead filed the discovery response when it was due. Such is deemed a timely designation. Placing the onus on a defendant to respond before the Rules of Civil Procedure obligate it to do so not only contravenes Section 33.004(d)’s express language but would also be unfairly prejudicial to defendants. Covarrubias’s second argument that Nolana was “substantively” dismissed was rejected as missing a statute of limitations in this case was procedural in nature. Under the proportionate-responsibility statute, “responsibility” is not equated with “liability.” Finally, an adequate appellate remedy is ordinarily lacking because allowing a case to proceed to trial without a properly requested responsible-third-party designation “would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of the relator’s defense in ways unlikely to be apparent in the appellate record.”  As a result, the trial court had a required duty to allow the designation. The court granted the writ of mandamus ordering Nolana be designated as a responsible third-party.*

Premises Liability: Hillis v. McCall, No. 18-1065, 2020 WL 1233348 (Tex. Mar. 13, 2020). This is a premises-liability case where the Texas Supreme Court ruled the property owner negated as a matter of law the duty to warn of the brown-recluse spider danger. While not a governmental liability case, the analysis of knowledge would be similar.

Hillis owns a bed and breakfast (B&B) and a neighboring cabin, which he rents out. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems, on an “as needed” basis. Hillis leased the neighboring cabin on the property to Henry McCall, and utilized him as a handyman. Hillis typically called McCall several days before guests arrived and asked him to perform various tasks associated with B&B services. While checking under the sink for a leak in response to a Hillis call, McCall was bitten by a brown recluse spider. Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders. Hillis asserted he would pass along the information to the housekeeper to take care of. McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion for summary judgment and McCall appealed.

The Texas Supreme Court held the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.” When the injured person qualifies as an invitee, as McCall did by admission of the parties, then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is or reasonably should be, aware but the invitee is not.” The duty does not extend to warning the invitee of hazards that are open and obvious. The court also recognized that with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property.

Wild animals “exist throughout nature” and are “generally not predictable or controllable.” The exception to this doctrine is when wild animals are found in artificial structures or places where they are not normally found, the landowner knows or should know of the unreasonable risk of injury and patrons would not be expected to recognize the danger. Under this exception, the landowner owes the general duty owed to an invitee to warn or make safe unreasonably dangerous conditions they know or should know about. However, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm.

The court analyzed the record and listed pertinent facts. The court found knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property. According to McCall, Hillis should have warned him that the spiders McCall himself had seen and reported to Hillis were dangerous. The court expressly stated “[w]e will not impose a duty on a landowner to warn an invitee about something he already knows.”  As a result, Hillis negated a duty to McCall as a matter of law.*

Open Meetings: Chisholm Trail SUD Stakeholders Group v. The Chisholm Trail Special Util. Dist., No. 03-18-00566-CV, 2020 WL 1281254 (Tex. App.—Austin Mar. 18, 2020) (mem. op.). This is an appeal in an asset transfer and utility system consolidation case in which the court of appeals granted the appellees motion to dismiss this appeal as moot, set aside the trail court’s order of final summary judgement, and dismissed the case for lack of jurisdiction.

Chisholm Trail SUD Stakeholders Group (Stakeholders Group) filed suit complaining that the Chisholm Trail Special Utility District (District) and its directors violated the Open Meetings Act (TOMA) rendering an asset transfer and utility system consolidation agreement between the District and the City of Georgetown void. The Stakeholders Group sought a declaratory judgement and injunction to enjoin and prevent the District and its directors from continuing to violate the TOMA. The trial court granted a final summary judgement dismissing, with prejudice, the Stakeholders Group’s claims against the District, its directors, and the city (Appellees). The Stakeholders Group appealed. The Appellees filed a motion to dismiss the appeal as moot. 

The court of appeals concluded that it did not have standing because the Stakeholders Group’s claims were moot. The court determined that the District had been dissolved pursuant to state law, which authorized the District, regardless of pending litigation, to vote to dissolve; the Public Utility Commission had entered a final order to transfer the District’s certified water-service area to the city, and such order was not appealable; and the requested relief to enjoin the Appellees from future TOMA violations would have no effect because the District had been dissolved and has no directors. Accordingly, the court lacked jurisdiction over the appeal.

Contractual Immunity: Dallas Area Rapid Transit Auth. v. GLF Construction Co., No. 05-19-00930-CV, 2020 WL 1650060 (Tex. App.—Dallas Apr. 3, 2020) (mem. op.). This is an interlocutory appeal in a contractual immunity case in which the court of appeals affirmed the trial court’s order denying the Dallas Area Rapid Transit Authority’s (DART’s) plea to the jurisdiction.

GLF Construction Company (GLF) and DART entered into a contract for GLF to build part of a DART light rail extension. In the contract, the parties agreed to an administrative dispute resolution process. According to GLF, DART’s inadequate project administration drove GLF’s costs up far beyond the contract price. GLF submitted a request for equitable adjustment, which was denied by a DART contracting officer. GLF administratively appealed the contracting officer’s decision to an administrative judge, but the judge’s decision, while finding liability and damages, did not provide which party owed any money. In January 2019, GLF sued DART for breach of contract and for a finding to hold the dispute resolution process unconstitutional. DART filed a plea to the jurisdiction, which was denied. DART appealed. 

DART asserts that its immunity was not waived because: (1) the contract in question was executed in 1999 before Chapter 271 of the Local Government was in effect; and (2) GLF failed to exhaust its remedies under the dispute resolution process. The court declined to decide whether Chapter 271 applies retroactively, but found that DART did not establish that GLF failed to exhaust the contract’s adjudication process. The court of appeals found DART’s position – that GLF’s failure to formally list its suit as an appeal or identify any legal errors in the administrative judge’s ruling that the lawsuit was not an appeal of that decision – lacking. The court noted that GLF requested a trial de novo from the administrative law judge’s decision and sought damages. As a result, GLF’s petition challenges the administrative judge’s decision within the plain meaning of the regulations and contract, and the plea was properly denied.*

Immunity: City of Dallas v. Rodriguez, No. 05-19-00045-CV, 2020 WL 1486831 (Tex. App.—Dallas Mar. 27, 2020) (mem. op.). On the court’s own motion, the court withdrew its opinion and judgement from August 7, 2019, and substitutes this new opinion and corresponding judgement in its place. In the new opinion, the court reverses the trial court’s order, grants the city’s plea to the jurisdiction, dismisses Rodriguez’s claims for want of subject matter jurisdiction, and remands the case to the trial court for further proceedings consistent with this opinion.

This is an appeal of a trial court’s order denying the City of Dallas’ plea to the jurisdiction in a case involving an accident with a marked police vehicle in which the court reverses the trial court’s order, dismisses Rodriguez’s claims, and remands the case to the trial court.

Rodriguez alleged that she was injured after a City of Dallas police officer disregarded a red light and caused her vehicle to strike the officer’s marked vehicle. Rodriguez sued the city alleging negligence, gross negligence, respondeat superior, and negligence per se. The city filed a plea to the jurisdiction arguing that the police officer was entitled to official immunity and the city was shielded from liability by governmental immunity because the officer was performing a discretionary function within the scope of her employment and acting in good faith. The city’s plea was supported by the officer’s affidavit describing the circumstances of the accident and her actions and perceptions of the urgency of the situation and risks involved. Rodriguez objected to the police officer’s affidavit arguing that it was hearsay and that five paragraphs of the affidavit should be excluded. The trial court denied the city’s plea and sustained Rodriguez’s objections to the affidavit except for one statement. The city appealed.

The court of appeals first looked at whether the trial court abused its discretion in sustaining Rodriguez’s objections to the affidavit offered in support of the city’s plea to the jurisdiction. The court concluded that Rodriguez’s objections were not sufficiently stated as she did not state the specific grounds on which each identified section of the affidavit was objectionable. 

The court next addressed whether the officer in the performance of discretionary duties acted in good faith so as to sustain the defense of official immunity. The court concluded that Rodriguez failed to raise a factual dispute as to whether the officer acted recklessly or in violation of the law. The court also determined that the following evidence conclusively established that the officer was acting in good faith: (1) the officer was responding to a potentially life threatening emergency involving several unknown people beating on a woman’s door and threatening her with a gun; (2) the officer stopped at the intersection and believed, in good faith, that the need to get to the scene of the emergency call outweighed the perceived minimal risk of an accident; (3) the road was dry, traffic appeared to be yielding to the officer, and her emergency lights, siren, and air horn were activated; and (4) she did not perceive that proceeding through the intersection would cause any danger to any other driver near her location. Accordingly, the court reversed the trial court’s order, granted the city’s plea to the jurisdiction, dismissed Rodriguez’s claims for want of subject matter jurisdiction, and remanded the case to the trial court for further proceedings consistent with this opinion.

Contractual Immunity: Amador v. City of Irving, No. 05-19-00278-CV, 2020 WL 1316921 (Tex. App.—Dallas Mar. 20, 2020) (mem. op.). This is an appeal involving a breach of contract claim in which the court of appeals reversed the trial court’s order granting the City of Irving’s plea to the jurisdiction.

Amador enrolled in a program offered by the city, and funded by HUD, to provide low-income homeowners loans to refurbish their homes using city-approved contractors under the city’s supervision. Under the program, a homeowner is required to sign a loan document in which a portion of the loan is non-deferred and interest bearing, while the remainder is deferred at a rate of 1/15th per year, but is due in full should the homeowner move out of the home or choose to sell it.  The program uses a list of preferred contractors who have been vetted by the city and have agreed to the city’s terms, practices, and construction standards.  All preferred contractors are invited to bid on a project, and upon receipt and review of the bids, the city presents all eligible bids to the homeowner who may then choose a contractor from any of the eligible bids. Upon enrollment, Amador signed a copy of the city’s policies and procedures and loan documents. She also entered into a mechanic’s lien contract with Javier Villagomez, a city-approved contractor that she selected to restore her home. Villagomez immediately transferred the lien to the city. Amador was not satisfied with the contractor’s work, claiming that he performed substandard work that resulted in damage to her home. Amador alleges that the city was aware that the contractor was not competent, licensed, bonded or insured, and that when she informed the city of the problems with his work, the city repeatedly told her that the work would be completed, yet the city paid the contractor in full and did nothing to help fix her home. Amador sued the city and the contractor asserting against both defendants claims for breach of contract and negligence, and against the city claims for fraudulent inducement and violations of the Deceptive Trade Practices Act. She sought a declaratory judgement that the subject agreements be declared void or voidable at her election, and to recover attorney’s fees. The city filed a plea to the jurisdiction asserting governmental immunity. Following a hearing, the court granted the plea and dismissed the city from the suit. Thereafter, Amador settled her claims with the contractor. Amador appealed the plea as it relates to the city.

The court first looked at whether the contract was an agreement for providing goods or services to the city such that governmental immunity was waived under Chapter 271 of the Local Government Code. The court concluded that Villagomez’s service of repairing Amador’s home was a service to the city by virtue of the city’s property interest in the home, which was acquired by lien assignment, and that Amador’s payment of interest to the city under the loan agreement provided the city with a direct benefit. The court then looked at whether waiver of immunity from suit extends to claims for damages where there is no “balance due and owed.” The court concluded that Amador had alleged damages recoverable under Chapter 271 as the damages to remedy the improper work done by Villagomez directly and necessarily resulted from the city’s breach of the contract. As such, the court reversed the trial court’s grant of the city’s plea to the jurisdiction on the breach of contract claims. However, the court affirmed the trial court’s order granting the city’s plea with respect to the non-contract claims, finding that Chapter 271 does not waive immunity for negligent or intentional torts. Finally, the court affirmed the trial court’s order granting the city’s plea to the jurisdiction regarding the Uniform Declaratory Judgment Act (UDJA), finding that Amador did not allege a UDJA claim for which governmental immunity was waived.

Civil Forfeiture: 1812 Franklin St. v. State of Texas, No. 06-19-00065-CV, 2020 WL 1482584 (Tex. App.—Texarkana Mar. 27, 2020). Richard Lynn Clark (Clark), with his wife, Ester, owned the house at 1812 Franklin Street in Bonham, Texas, which they bought in February, 2015. In August 2015, Clark was stopped by an officer of the Bonham Police Department (BPD) on his motorcycle and was found in possession of 5.14 grams of methamphetamine. Clark told the officer that he was on his way home and admitted that he did intend to keep the drug at his home. Clark plead guilty to the second degree felony of possessing more than four, but less than 200, grams of methamphetamine and pursuant to a plea agreement was sentenced to eight years imprisonment and ordered to pay a $1,500 fine.

While Clark was incarcerated, Ester sold drugs from the house and allowed various other illegal activities to take place there. Over many months of surveillance of the house, stopping people that left the house and finding them in possession of drugs, and seeing the presence of “wanted people”, the Bonham Police Department raided the house in July 2018 after a controlled buy was made at the house. Through communications with his sister, Clark was aware of the activities going on at his house while he was incarcerated.

The State of Texas filed a civil forfeiture case to declare Clark’s house contraband under Article 59 of the Texas Code of Criminal Procedure.  The trial court found the house was contraband because it was used in the commission of several drug-related offenses and ordered its forfeiture. Clark filed an appeal and argued that the State failed to meet its burden of proof to show that the house was contraband, that he proved the innocent-owner defense because he was in prison while Ester was using the property to commit the drug-related offenses without his knowledge, and that the forfeiture violated the Excessive Fines Clause of the Eight Amendment of the United States Constitution.

The Sixth Court of Appeals did not agree. The court took up each argument separately. First, the Court found that the State did have legally and factually sufficient evidence to support the finding that the house was contraband since the state did meet its burden of proof by a preponderance of the evidence. The state showed that for a period of several months, drugs and paraphernalia were found in the house, on the persons of people in the house, and during traffic stops of vehicles leaving the house which showed a substantial connection between the property and the illegal activity. Also, the court noted that community property is not exempt from forfeiture where the property is being used by a spouse in a manner that violates the Texas Controlled Substance Act, even though the property is used by one spouse without the knowledge or consent of the other spouse. Therefore, the state did not have to show that the owner had knowledge of the illegal activity in order to prove that the property is contraband.

Second, the court found that there was legally and factually sufficient evidence that supported the trial court’s rejection of Clark’s innocent-owner affirmative defense. For a person to prevail under this defense, once the state has met its burden, the burden shifts to parties claiming this defense to prove that the owner or interest holder was not a party to the offense giving rise to the forfeiture, and that the contraband was used or intended to be used without the effective consent of the owner or interest holder in the commission of the offense giving rise to the forfeiture. Though Clark established the first requirement (not a party to the offenses that gave rise to the forfeiture), he could not prove that he did not give effective consent. Clark admitted that he used methamphetamine at his house for a few years before he was incarcerated. Also, while incarcerated, Clark received information from his sister about Ester’s illegal activities going on in the house and he continued to support Ester and authorized the paying of bills by his sister. Clark impliedly consented to the drug-related activity happening in his house.

Third, the Court found the forfeiture did not violate the Excessive Fines Clause. For there to be a violation of the Excessive Fines Clause, the following factors have to be considered: (1) the nature of the offense; (2) the relationship or the offense to other illegal activities, (3) whether the defendant was in the class of persons addressed by the forfeiture statute; (4) the maximum fines and sentences for the offense committed and the level of culpability reflected by the penalties; and (5) the harm that the defendant caused. United States v. Bajakajian, 524 U.S. 321, 337-39 (1998). After reviewing all the factors from the Bajakajian proportionality test, the court did not find that the house’s forfeiture was grossly disproportionate to the offenses giving rise to the forfeiture. The forfeiture did not result from Clark’s arrest, it resulted from the raid of the house which revealed that Ester was running a drug haven in the house, as well as other illegal activities being observed and people being arrested for the drug activity happening in the house. Ester was definitely the class of person that the forfeiture statute was addressing, i.e. drug traffickers. Ester’s state jail felony carried a maximum fine of $10,000 and maximum of two years imprisonment. Additionally, four other people were arrested during the raid for possession of methamphetamine, which they presumably purchased at the house with Ester’s approval. The maximum fines for the offenses of each of the additional people arrested would exceed the purchase price of the house ($45,000). Finally, there are many studies that clearly demonstrate the direct nexus between illegal drugs and crimes of violence and that our society is negatively affected by criminal drug activities. This illegal activity is exactly what the civil forfeiture statute was designed to permit the state to prevent.

Last, the court found that Clark failed to preserve his remaining points of error since Clark did not properly raise complaints concerning double jeopardy and collateral estoppel barring the trial court’s consideration of his 2015 conviction, forfeiture of his house being barred by double jeopardy, trial court error in taking judicial notice of unobjected-to testimony from another case, and officers offered allegedly perjured testimony. Therefore, the court affirmed the trial court’s judgment.

Civil Forfeiture: State of Texas v. Ten Thousand Two Hundred Fourteen Dollars, No. 07-18-00306-CV, 2020 WL 1597849 (Tex. App.—Amarillo Apr. 1, 2020) (mem. op.). In May 2017, Andre Dyer Faina (Faina) was pulled over by Sherman County deputy sheriffs for failing to signal a right turn within 100 feet of an intersection. During the stop, a City of Stratford canine officer arrived and allowed his dog to perform a free air sniff of Faina’s car. The dog indicated a positive alert for the presence of illegal odor of narcotics emitting from Faina’s car. Deputies searched Faina’s car and found approximately $10,214 under the driver’s seat. When asked where he was going, Faina stated he was going to visit his mother in Oklahoma. When told he was headed in the wrong direction, Faina said he made an exit in Dallas that brought him to Stratford, as well as, that his sister was graduating. When asked about the money, Faina stated that he was taking it to his mother to repay a debt and intended to give a portion to his sister. Faina stated he had previously been in trouble in Houston for a “little amount” of marijuana.

Faina was arrested for an outstanding New Mexico warrant for possession of marijuana that happened in August of 2016 for transporting six pounds of marijuana from Colorado. Faina’s arrest record showed an arrest in Houston for two pounds of marijuana, but there was no evidence that Faina was ever convicted of these alleged crimes. While in custody, Faina voluntarily spoke with the deputies and consented to a search of his cellphone. Deputies found a highlighted route from Wichita Falls to the Denver, Colorado area. When deputies asked about the map and no address in Oklahoma, Faina said his sister graduated the previous weekend.

The State of Texas filed a civil forfeiture lawsuit of the seized money discovered in Faina’s car, alleging the money was contraband as defined by Article 59.01(2) of the Texas Code of Criminal Procedure. Faina answered and filed a no-evidence motion for summary judgement, asserting that the state had no evidence the seized money was contraband under the statute. The state responded with a deputy’s affidavit. The trial court granted Faina’s motion and rendered a judgement directing the state to restore the seized money to Faina. The State of Texas appealed.

The state argued that the trial court erred on rendering summary judgment for Faina because it presented more than a scintilla of evidence that the money was contraband. Specifically, the state argued the summary judgement evidence, including all inferences to be drawn therefrom, raised a genuine issue of material facts that Faina was going to use the money to drive to Colorado and buy large amounts of marijuana.

The Seventh Court of Appeals did not agree. The state had the burden of proving that Faina intended to drive to Colorado to buy a large amount of marijuana with the money found in his car. Based on the summary judgment evidence in the light most favorable to the non-moving party, the court held that the state failed to present more than a scintilla of evidence that the seized money constituted contraband. All the evidence and inferences supported a finding that Faina was driving to Colorado when he was stopped in a routine traffic stop, he had prior arrest for drug-related offenses, and the money had been around illegal narcotics. But, that the money was going to be used to purchase a large amount of marijuana would require the court to impermissibly stack inference upon inference. The state did not meet its no-evidence summary judgement burden of presenting more than a scintilla of evidence to establish a substantial connection between the money it seized and its alleged use to buy marijuana, and therefore that the seized money was contraband. The court overruled the state’s issue and affirmed the judgement of the trial court.

Civil Forfeiture: Approximately $23,606.00 United States Currency v. State of Texas, No. 07-19-00297-CV, 2020 WL 1500073 (Tex. App.—Amarillo Mar. 27, 2020) (mem. op.). On June 6, 2016, the State of Texas filed a notice of seizure and intended forfeiture of approximately $23,606.00 seized from Guinapauline Santos (Santos) under Article 59 of the Texas Code of Criminal Procedure. Various procedural matters delayed the trial court granting the state’s motion of summary judgment and denial of Santos’s motion to dismiss on August 12, 2019. Some of these delays included Santos not filing a response to the state’s discovery requests, an informal tacit abatement agreement to wait for the Texas Supreme Court to opine on a case similar to the present case, and Santos filing her notice of intent to challenge the constitutionality of the forfeiture statute. Santos appealed the trial court’s judgment contending the trial court erred by denying her motion to dismiss for want of prosecution and that the statutory forfeiture scheme violates constitutional protections.

The Seventh Court of Appeals disagreed with Santos. Rule 6.1 of the Texas Rules of Civil Procedure provides time standards in which trials should be brought to trial or final disposition. Generally, civil nonjury cases should be tried or brought to final disposition within twelve months from the appearance date. However, the application of Rule 6 is discretionary and nonbinding and may not be possible to adhere to if the case is especially complex or has special circumstances. In this case, the court stated that many of the delays in this case were caused by Santos. Thus, the trial court did not abuse its discretion in denying Santos’ motion of dismissal.

Also, the Court stated that a constitutional challenge of a state statute is a serious matter and requires adequate briefing, including the citing of legal authority and substantive analysis to support the issues in order for the complaint to not be waived. The court held Santos presented none of this, but that her writing appeared to suggest little more than a personal viewpoint on the supposed inequities of historic and current forfeitures. Therefore, Santos waived her constitutional attack of the civil forfeiture statute. The trial court’s judgment is affirmed.

Whistleblower Act: Reding v. Lubbock Cty. Hosp. Dist., No. 07-18-00313-CV, 2020 WL 1294912 (Tex. App.—Amarillo Mar. 18, 2020) (mem. op.). This is a Texas Whistleblower Act case where the Amarillo Court of Appeals affirmed the granting of the hospital district’s plea to the jurisdiction.

Reding is a registered nurse working for the Lubbock County Hospital District d/b/a University Medical Center (UMC). UMC announced plans for a new policy that required nurses to sign up for two mandatory “on call” shifts per month and disciplined those who did not comply. Reding believed the proposed compulsory shifts violated Section 258.003 of the Texas Health & Safety Code, prohibiting a hospital from requiring a nurse to work mandatory overtime. She filed a complaint with the human resources and legal departments. Reding was later terminated. Reding asserted the termination was retaliatory and brought suit under the Texas Whistleblower Act. UMC filed a plea to the jurisdiction which was granted. Reding appealed.

Reding alleged that she “reasonably and in good faith believed that [UMC’s] legal department was the appropriate authority to whom she should report the violation.” However, the Texas Supreme Court has consistently held that “reports up the chain of command are insufficient to trigger the Act’s protections.” To qualify, the internal department must also have outward-looking powers, as an “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.” While the legal department at UMC may oversee internal compliance with the law governing nurses’ work hours, that is not the same as having the authority to enforce laws against third parties. The plea was properly granted.*

Insurance Claims: City of Spearman v. Texas Mun. League Intergovernmental Risk Pool, No. 07-18-00402-CV, 2020 WL 1174183 (Tex. App.—Amarillo Mar. 11, 2020). The City of Spearman submitted a claim with the Texas Municipal League Intergovernmental Risk Pool (TMLIRP), a governmental self-insurance fund, for hail damage to buildings caused by a hailstorm that occurred on May 16^, 2016. TMLIRP sent an adjuster to inspect five buildings for hail damage and estimated the replacement-cost value of the covered loss to be $5,437.66. TMLIRP sent the city a sworn statement in proof of loss for the city to sign that reflected the adjuster’s estimate of the loss. The city neither returned the proof of loss nor filed any other sworn proof of loss. The city hired a roofing contractor to inspect some of the buildings and submitted an estimate of the required repairs to TMLIRP. TMLIRP sent an engineering firm to conduct a second inspection and the firm determined that there was no additional covered loss beyond that identified by the initial inspection. TMLIRP informed the city of the results of the latest inspection.

In May 2017, the city filed suit against TMLIRP for breach of contract, claiming TMLIRP had improperly denied coverage and underpaid the claim. TMLIRP answered the suit and filed a traditional and no-evidence motion for summary judgment. In its motions, TMLIRP claimed five reasons why there was no breach of contract including that the city failed to submit a sworn proof of loss. The trial court granted TMLIRP’s motion for summary judgment without specifying the grounds for its ruling and dismissed the city’s breach of contract claim with prejudice. The city appealed.

The city challenged all five grounds presented in the TMLIRP’s motion for summary judgment.  However, the Sixth Court of Appeals only addressed the sworn proof-of-loss issue as it was dispositive. The court affirmed the trial courts granting of TMLIRP’s motion for summary judgment because a proof of loss is a “condition precedent to recovery on the policy” according to the Texas Supreme Court. Am. Teachers Life Ins. Co. v. Brugette, 728 S.W.2d 763, 764 (Tex. 1987). The city failed to submit the proof of loss as required by the policy, as well as, failed to satisfy a condition to recovery in the policy. Therefore, under the circumstance presented to the court, the trial court had one ground supporting its decision.

Gender Discrimination/Hostile Work Environment: County of El Paso v. Aguilar, No. 08-19-00082-CV, 2020 WL 1303556 (Tex. App.—El Paso Mar. 18, 2020). This is a gender discrimination/hostile work environment case where the El Paso Court of Appeals reversed-in-part and affirmed-in-part the denial of the county’s plea to the jurisdiction. The 42-page opinion presents a detailed analysis under employment law, including prima facie element analysis and burden shifting.

Aguilar worked for the county in various positions for nearly twenty-four years. She was holding the position of facilities manager when she complained to her supervisors and the human relations department that she was paid substantially less than not only the male who previously held the equivalent position but also less than other similarly situated male coworkers. She also raised the issue of pay disparity with the county commissioner’s court. She also complained she was harassed by a male co-worker. The supervisor put restrictions on the co-worker in 2014, limiting contact with Aguilar and her staff. That restriction was lifted five months later, but according to Aguilar, the co-worker, Lucero, resumed his harassing behavior. When Aguilar obtained an email the supervisor wanted to discuss Lucero with her and her behavior in a meeting where he was present, she experienced an anxiety attack and eventually resigned. Aguilar brought suit under the Texas Commission on Human Rights Act (TCHRA) under a constructive discharge theory. The county filed a plea to the jurisdiction, which was denied.

The court first went through numerous pages regarding the affidavits and determined the trial court did not abuse its discretion in considering Aguilar’s affidavit. Next, the court determined Aguilar was required to establish she was “treated less favorably than similarly situated members of the opposing class[.]” The county presented evidence that Aguilar did not hold the same job position, duties and responsibilities, or requirements for education as the comparators she listed. The applicable test is not whether the positions are comparable in some respects; the test is whether the positions are “comparable in all material respects.” While Aguilar’s burden at the prima facie stage was not onerous, it did require, at a minimum, that she present evidence raising a fact issue on whether she was similarly situated to members outside her protected group who were treated differently. She did not present contradicting evidence as to two other managers, but did as to a third, Cruz. As a result, the plea should have been granted as to disparate regarding the first two managers, but was properly denied as to Cruz.

As far as the harassment claim goes, the county argues that Lucero’s comments did not create a hostile work environment because many of them were made to persons other than Aguilar. But those comments were made about Aguilar and were humiliating to her. In addition, because many of the comments were made to her staff and to contractors with whom she worked, they interfered with her ability to perform her job duties. Aguilar demonstrated that a disputed material fact existed concerning whether her work environment was objectively hostile or abusive. While the restrictions on Lucero were put in place, they were lifted five months later and he returned to his prior behavior. While the county asserts it did not have time to respond to the return, Aguilar’s hostile work environment claim is not based solely on the final week of her employment, divorced from the years of harassing conduct that preceded that week. A reasonable person could conclude that this failure effectively communicated to Aguilar that Lucero would be permitted to once again humiliate Aguilar and interfere with her job performance.

As to Aguilar’s retaliation charge, she asserted after complaining about Lucero, her supervisor sent her an email accusing her of inappropriate behavior in a meeting. When her supervisor emailed her to discuss “next steps” she took that to mean discipline of her, so she resigned. The totality of the circumstances surrounding Aguilar’s hostile work environment claim created a fact issue as to whether retaliation was committed by the county for reporting harassment. However, no fact issue exists regarding Aguilar’s retaliation charge for reporting disparate pay. In sum, the plea was properly denied as to some claims, but should have been granted as to others.*

Recreational Use Statute: Johnson v. Woodlands Township, No. 09-18-00247-CV, 2020 WL 1479715 (Tex. App.—Beaumont Mar. 26, 2020) (mem. op.).In July 2016, Johnson injured his knee when he slipped from a diving board at one of The Township’s community pools. Johnson sued The Township (a governmental entity) alleging negligence and gross negligence caused his fall. The Township filed a combined plea to the jurisdiction and no-evidence motion, which was granted by the trial court.

Johnson appealed, arguing the trial court erred by: (1) granting The Township’s plea to the jurisdiction; (2) granting The Township’s motion for summary judgment; and (3) considering unreliable evidence when it granted the combined plea.

The appellate court concluded that the Recreational Use Statute applied to Johnson’s claims. As a result, in response to The Township’s combined plea, Johnson needed to produce evidence to demonstrate a genuine issue of material fact existed on his gross-negligence claim. Johnson’s evidence showed only that The Township was unaware of the procedures the manufacturer recommended about using and maintaining the diving board. The Township did inspect and maintain its pools, and its inspection procedures included inspecting the pool’s diving boards. An entity’s failure to follow a manufacturer’s recommended practice, without more, fails to show the entity knew of the risk created by not following inspection procedures and did not care.

Johnson failed to establish any of the Tort Claims Act’s waivers apply to his claims. The trial court’s judgment was affirmed.

Employment: City of Coldspring v. Boudreaux, No. 09-19-00251-CV, 2020 WL 1465977 (Tex. App.—Beaumont Mar. 26, 2020) (mem. op.). Suzann Boudreaux sued her employer, the City of Coldspring, alleging that the city, by and through the actions of its Alderman, Greg Vore, engaged in sex discrimination and workplace harassment in violation of the Texas Commission of Human Rights Act (TCHRA). Specifically, Boudreaux alleged that:

• during a city council meeting on November 5, 2018, Vore stood up during open session and slapped on the table in a threatening manner and untruthfully shouted that Boudreaux was a liar.
• during a November 5, 2018, city council meeting, Vore yelled at Mayor Pat Eversole, stating “I don’t like you and I can’t stand to look at you.” Immediately following the meeting, Alderman Charles Altman told Eversole that she should fix her hair and nails so that it would not be so difficult for Vore to look at her.
• Aldermen openly discussed and questioned why a female citizen of African American heritage would want to serve on city council.
• On numerous occasions, Altman entered city council announcing that “his balls are on the table,” and Vore stated that “he was looking for a set of pink balls for the Mayor so she could have some[.]”
• While discussing a ticket that a Texas Department of Public Safety Trooper had issued to a citizen, Vore used a racial epithet. Boudreaux and Eversole were present when Vore made the statement, and Boudreaux alleged that Vore intended his statement not only as a racial slur, but also as a bullying and demeaning statement because Vore knew that Mayor Eversole was in a relationship with an African American.
• Vore frequently patted his hips and warned, in an intimidating fashion, that he had a firearm.
• Vore openly commented about the difficulties of a female citizen who was riding a bike, stating that she was so “fat you couldn’t see the bike seat and she was barely moving.”

The city filed a plea to the jurisdiction which was denied by the trial court. The city appealed and argued that the trial court erred in denying its plea to the jurisdiction because Boudreaux failed to plead a prima facie gender-based hostile work environment claim under Section 21.051 of the Labor Code. The city argued that it was immune from suit under the TCHRA because Boudreaux failed to plausibly plead or raise a fact issue on any of the essential elements of her claim.

The appellate court found that, although Boudreaux’s evidence showed that she was subjected to repeated and ill-mannered behavior, the instances that she alleges do not amount to the quality or severity of misbehavior sufficient to subject Boudreaux to hostile or abusive conditions which materially alter her conditions of employment. Additionally, Boudreaux did not show that Vore calling her a liar was based on her gender or was part of a pattern of gender-based harassment. And the mere utterance of an epithet that engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to create a hostile work environment. The court concluded that all of Boudreaux’s evidence, taken together, failed to demonstrate that her working conditions were so severely degraded and fraught with discriminatory hostility or abuse as to warrant invocation of the TCHRA’s protections. Thus, the city’s immunity was not waived and the trial court’s denial of the city’s plea to the jurisdiction was reversed.

Boudreaux also sued Alderman Vore, individually, for defamation, defamation per se, slander, and intentional infliction of emotional distress. The trial court denied Vore’s motion to dismiss. Vore appealed. On appeal, he argued: (1) he had official and legislative immunity; (2) Boudreaux failed to state a prima facie case for her defamation and defamation per se claims; and (3) Boudreaux failed to state a prima facie case for her claim of intentional infliction of emotional distress, and that the tort is barred as a “gap-filler” tort. Vore also complained that the trial court improperly awarded attorney’s fees to Boudreaux.

The appellate court concluded that because Vore established by a preponderance of the evidence that Boudreaux’s claims are based on, relate to, or are in response to his exercise of free speech, and because Boudreaux failed to establish a prima facie case for each essential element of her claims, the trial court erred by denying Vore’s motion to dismiss under the Texas Citizens Participation Act (TCPA). The trial court’s ruling was reversed and remanded to the trial court with instructions to enter judgment dismissing all of Boudreaux’s claims against Vore and, after notice and a hearing, to award Vore his damages and costs as provided by the TCPA.

Takings: City of Albany v. Blue, No. 11-18-00051-CV, 2020 WL 1623719 (Tex. App.—Eastland Apr. 2, 2020) (mem. op.). This is an interlocutory appeal in a nuisance and inverse condemnation case where the Eastland Court of Appeals reversed the denial of the city’s plea to the jurisdiction.  It then remanded to allow the plaintiffs the ability to replead.

The City of Albany began construction of a drainage and improvement project for the city-owned golf course next to property owned by the plaintiffs. The plaintiffs assert the construction altered surface water flow and drainage resulting in the flooding of their property. They sued and the city filed a plea to the jurisdiction, which was denied. The city appealed.

The city only challenged the sufficiency of the plaintiffs’ pleadings and did not submit any evidence contrary to the alleged facts. The city asserts that plaintiffs failed to allege facts that show an intentional act of the city.  However, if the city knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged. The plaintiffs merely allege that the city “knew that its actions would cause identifiable harm, or that specific property damage was and is substantially certain to occur.” However, conclusory statements in a pleading are insufficient to establish jurisdiction. As a result, the plaintiffs did not sufficiently plead an inverse condemnation claim. Likewise, they failed to allege the required intent needed to establish a nuisance claim against the city under the Texas Constitution. Again, they provide mere conclusory statements.  However, the plaintiffs were not put on notice their pleadings were defective. The pleading defects in this case are not the type that can never be cured. As a result, the case is remanded to give the plaintiffs the opportunity to cure the defects.*

Public Information Act: Horton v. Welch, No. 12-19-00381-CV, 2020 WL 1697439 (Tex. App.—Tyler Apr. 8, 2020) (mem. op.). James Horton made two Public Information Act (TPIA) requests of Ron Welch, the mayor of Caney City, requesting, among other items, copies of all text messages and emails of all city council members from November 2015 to January 2019. Welch responded to the request after Horton paid the resulting fees. However, Welch did not ask any councilmembers whether they had text messages or emails responsive to the request. Horton filed a suit under the TPIA, asserting that Welch did not fully comply with his request, and asked the trial court to issue a writ of mandamus directing the city to fully comply. The trial court granted Welch’s motion for summary judgment, and Horton appealed.

Horton’s sole issue on appeal is that the trial court erred in granting summary judgment in favor of Welch because Welch admitted in his deposition testimony that he made no inquiry of councilmembers regarding text messages and emails, which raises a fact question regarding whether Welch and the city complied with his requests. The court held that Welch “labored under a basic misconception of the law.” In this case, the city could not fulfill the requirements of the TPIA by producing only documents in its possession when its officials possess documents that are subject to disclosure. Because the city did not seek to obtain texts and personal emails from councilmembers that the city did not keep in the regular course of business, there was a genuine issue of material fact as to whether Welch fully complied with Horton’s requests by providing all texts and emails written by councilmembers in connection with the transaction of official business of the city. The court reversed the trial court’s judgment and remanded the cause to the trial court for further proceedings.

Workers’ Compensation: City of Dallas v. Thompson, No. 12-19-00036-CV, 2020 WL 1443567 (Tex. App.—Tyler Mar. 25, 2020). Greg Thompson was employed by Dallas as a firefighter. After he was diagnosed with testicular cancer in August 2010, Thompson reported the cause of his injury as exposure to carcinogens during his career as a firefighter. The city denied compensability and liability, and ultimately administrative review of the case by the Division of Workers’ Compensation of the Texas Department of Insurance (DWC) proceeded pursuant to the requirements of the Texas Workers’ Compensation Act. An administrative law judge determined that Thompson suffered compensable injury, and importantly, that the city waived its defense that Thompson didn’t file a claim for compensation within one year of the injury because the city did not raise it within a reasonable time period after it became available. After review by a DWC appeals panel, the administrative law judge’s ruling became final. The city sought judicial review, where the trial court rendered partial summary judgment determining that the city was not relieved from liability for Thompson’s workers’ compensation claim. The city appealed.

On appeal, the city contended that the trial court erred because the city did not waive its one-year defense. First, the city argued that the administrative law judge erroneously added the waiver issue at the contested case hearing. On this point, the court determined that the city did not meet its burden to show, as a matter of law, that the administrative law judge erroneously added the waiver issue, since the city’s motion for summary judgment makes no mention of the contested case hearing exhibits and the court must presume that the omitted evidence supports the trial court’s judgment.

The city next argues that the administrative law judge’s determination that the city waived its defense that Thompson failed to timely file his claim because the city didn’t raise it within a reasonable period of time after it became available had no basis in law. The court states that workers’ compensation appeals panels have for years determined that the defense of the claimant’s failure to file within one year must be raised in a reasonable period of time. In this case, there was a five-year delay between the time that the defense became available and when it was asserted. The court held that inaction for a long period can prove waiver, and affirmed the trial court’s partial summary judgment. 

Contractual Immunity: City of Elsa v. Diaz, No. 13-19-00109-CV, 2020 WL 1615659 (Tex. App—Corpus Christi–Edinburg Apr. 2, 2020) (mem. op.). This is an interlocutory appeal (second for the case) in a contractual immunity case where the Thirteenth Court of Appeals held the city’s summary judgment was merely a motion to reconsider the already denied plea to the jurisdiction, so the appellate court lacked interlocutory jurisdiction.

Diaz was appointed as interim police chief but emails stated if not selected for the permanent position, he would resume his role as the warrants officer. Later, a new city manager removed Diaz from the chief position but terminated his employment. Diaz sued for breach of contract. The city first filed a plea to the jurisdiction which was granted. However, the Thirteenth Court of Appeals reversed and remanded. On remand, the city filed separate no-evidence and traditional motions for summary judgment, each reasserting that the trial court lacks subject matter jurisdiction because the city council did not formally approve the contract. The motions were denied and the city took this interlocutory appeal.

Although Section 54.014(a) does not expressly limit a party to one interlocutory appeal, the right to successive interlocutory appeals is not without limits. When a second motion/plea constitutes nothing more than a motion to reconsider, without any new or distinct evidence or arguments, the appellate court lacks interlocutory jurisdiction. In making this determination, courts of appeals should compare both the substance and procedural nature of the two challenges. The court held, in this case, the original plea and the motions for summary judgment were substantively and procedurally identical. The only change is the city added an affidavit which implicitly refutes evidence considered in Diaz I regarding the authority to enter into the contract by the city manager. Since the second set of motions does not contain “new and distinct” challenges to the trial court’s jurisdiction, they are mere reconsiderations. The court of appeals, therefore, dismissed the appeal for lack of interlocutory jurisdiction.*

Collective Bargaining: City of Houston v. Houston Prof. Fire Fighters’ Assoc., No. 14-18-00418-CV, 2020 WL 1528078 (Tex. App.—Houston [14th Dist.] Mar. 31, 2020) (mem. op.). The City of Houston and the Houston Professional Fire Fighters’ Association, Local 341, entered into a collective bargaining agreement (CBA) that included an agreement to arbitrate certain disputes. After the Houston Fire Department terminated the employment of several firefighters for failure to achieve paramedic certification, a grievance was filed by the association, resulting in arbitration. After arbitration, a trial court rendered summary judgment confirming the arbitration award in favor of the association. The city appealed, contending that the trial court erred in granting the association’s summary judgment because the arbitrator: (1) lacked jurisdiction when the association’s grievance was untimely; (2) exceeded her jurisdiction by deciding a question that was not before her; (3) modified the law and terms of the CBA at issue; and (4) exceeded her jurisdiction by ordering reinstatement of three firefighters.

Regarding the city’s first issue on appeal that the association’s grievance was untimely, the grievance procedure outlined in the CBA provided that the association was required to file a grievance within thirty days of the date upon which the association knew or should have known the facts or events giving rise to the grievance. The court held that because the CBA specifically authorized the arbitrator to handle the interpretation and application of the terms of the CBA, this encompassed determining when a grievance must be filed under the CBA. The arbitrator had express authority to determine the fact question relating to whether the grievance was timely, so the court held that the arbitrator did not exceed her authority by deciding the timeliness issue.

The city next argued that the arbitrator exceeded her jurisdiction by determining that the terminated firefighters had a right to an administrative appeal, which was not an issue that was before the arbitrator. The court held that the inability to appeal, or have a hearing concerning termination, was one of the changed consequences not permitted under the CBA. According to the court, the arbitrator maintained the authority to analyze the terms of the agreement as they related to the firefighters’ right to appeal.

In its third issue, the city argued that because Local Government Code Chapter 143 generally controls over a CBA, the arbitrator exceeded her jurisdiction by determining that the terminated firefighters should have a post-termination hearing because Chapter 143 does not provide a right of administrative appeal to a firefighter who is terminated for failing to meet conditions of employment. The court held that the city’s argument “boils down to a contention that the arbitrator got the law wrong” which is beyond the scope of the court’s review. The arbitrator’s analysis of the terms of the CBA was within the scope of the arbitrator’s authority, so the court overruled the city’s third issue.

Finally, the city asserted the arbitrator had no jurisdiction to order reinstatement since the CBA didn’t grant the arbitrator the authority to reinstate. The court relied upon common law to conclude that an arbitrator has broad discretion in fashioning an appropriate remedy, so the arbitrator did not exceed her authority by reinstating the terminated employees.

The court affirmed the trial court’s judgment.

*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.

Recent Texas Attorney General Opinions of Interest to Cities 

Note:  Included opinions are from March 11, 2020 through April 13, 2020.

KP-0299 (Property Tax Exemption): Section 11.35 of the Tax Code creates a temporary tax exemption for qualified property damaged by a disaster, as declared by the governor. A court would likely conclude that the legislature intended to limit the temporary tax exemption to apply to property physically harmed as a result of a declared disaster. Thus, purely economic, non-physical damage to property caused by the COVID-19 disaster is not eligible for the temporary tax exemption provided by Section 11.35 of the Tax Code.