Monthly Newsletter Archives 2021

Notice and Announcements

2021 Fall Conference in Houston

The Texas City Attorneys Association (TCAA) Fall Conference will be held in conjunction with the TML Annual Conference and Exhibition on October 7 at the George R. Brown Convention Center in Houston.

Attorneys can earn up to 5.0 MCLE hours, including 1.0 ethics hour.

Topics include:

• Leasing Considerations for Cities
• Role of City Attorneys in Risk Management
• Regulatory Takings
• Implicit Bias
• Statutory Interpretation
• Public Improvement Districts
• Platting
• Flooding Liability
• Ethics Commission

CLICK HERE FOR INFORMATION about registration and housing. Note: The schedule for the TCAA program is under “Affiliate Programs,” and most attorneys who will not be attending the entire TML Annual Conference and Exhibition will want to choose the “one-day registration” option, starting at $185.

TCAA to Fill Board Position on October 7, 2021 

Those interested in applying for a place on the board of the Texas City Attorneys Association should fill out an application and return it via email to Evelyn Njuguna at [email protected].  Application forms are available here and under the “About TCAA” tab, “Board of Directors” section, on the TCAA website at https://texascityattorneys.org.  Applications must be received by 5:00 p.m. on August 30, 2021

TCAA Statement on Racism and Equity 

In February 2021, the TCAA Board appointed a subcommittee to examine whether TCAA should issue a statement on racism and equity.  The subcommittee developed a statement on racism and equity for consideration by the TCAA Board.  On August 4, 2021, the TCAA Board unanimously approved the TCAA Statement on Racism and Equity. 

New TCAA-Affiliate

TCAA is excited to announce that the Central Texas City Attorneys Association (CT-CAA) has been approved as a TCAA-affiliated group! Details about the group are available here. 

Regional attorney groups are a great way to meet and network with other city attorneys within close geographic proximity. These groups also create opportunities and time to learn about legal issues facing cities and gain insight into solutions that can be applied across all city organizations. 

For more information about the Central Texas Attorneys Association, please email Charla Thomas, CT-CAA President, at [email protected] 

S.B. 2 Tax Rate Setting Resources 

A pre-recorded TML webinar addressing the city property tax rate setting process following the passage of S.B. 2 in 2019, with additional insight into the impact of state legislation passed in 2021, is available here. (MCLE credit is not available for this session.)  Tax and budget deadline memos and an updated explanatory Q&A are available here. 

State and Local Legal Center – Upcoming Webinar 

Supreme Court Preview Webinar 2021-22 

While the abortion and guns cases will very likely put the U.S. Supreme Court’s 2021-22 term in the history books, the Court has agreed to hear numerous cases of interest to states and local governments. On the docket already are three First Amendment cases including a sign case, a board member censure case, and a school choice case; a Medicaid case; and an “unreasonable seizure pursuant to legal process” case. Join Sarah Harris, Williams & Connolly, and Rick Simpson, Wiley, both counsel in cases involving the Rehabilitation Act, and Ken Jost, author of Supreme Court Yearbook and Jost on Justice, in a discussion of the most important cases the Supreme Court is planning to decide so far this upcoming term for states and local governments. 

Date: September 15 

Time: 1-2:15 P.M. EST 

Register here 

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. 

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 TCAA Fall Conference  

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 the videos from the conferences in a single–session format.  Viewing a session allows attorneys to receive participatory CLE credit with the State Bar. To view these 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 Evelyn Njuguna at [email protected].  

Articles

Texas Joins $21 Billion Opioid Settlement 

Attorney General Ken Paxton recently announced that Texas joined the $21 billion distributor opioid settlement. Texas, along with a broad coalition of states and subdivisions, reached final agreements with four companies to resolve legal claims for their role in the opioid crisis. One agreement is with opioid manufacturer Johnson & Johnson. The other is with three major pharmaceutical distributors: AmerisourceBergen, Cardinal Health, and McKesson. The settlement includes up to $1.1 billion awarded to Texas and its political subdivisions, including cities. 

Local governments need to join the settlement by January 2, 2022, in order to maximize the benefits of the settlement. Funding received under the settlement will be used to support opioid abatement strategies. More information, including the steps necessary to formally join the settlement, can be found here. 

Supreme Court Preview for Local Governments 2021-2022  

By: Lisa Soronen, State and Local Legal Center, Washington, D.C.  

The State and Local Legal Center (SLLC) files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments.  

*Indicates a case where the SLLC has or will file an amicus brief.  

Most U.S. Supreme Court cases of interest to local governments fly under the radar, even if they are very important to local governments. That is true of all local government cases the Court has agreed to hear so far in its 2021-22 term—except one. The Court’s gun case, involving the question of whether states and local governments can limit concealed-carry permits based on cause, is against a state. But local governments have adopted similar regulations. This preview of the Court’s upcoming term summarizes the gun case and three other cases significant to local governments.  

In New York State Rifle and Pistol Association v. Corlett* the Supreme Court will decide whether states may prevent persons from obtaining a concealed-carry license for self-defense if they lack “proper cause.”  Per New York state law, in order to carry a concealed handgun for self-defense purposes a person must show “proper cause.” New York case law requires an applicant to “demonstrate a special need for self-protection distinguishable from that of the general community” to satisfy the proper cause standard.  
Relying on circuit precedent, the Second Circuit ruled this requirement doesn’t violate the Second Amendment. The Second Circuit cited to Kachalsky v. County of Westchester (2012), where it applied intermediate scrutiny and upheld New York’s law stating: “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” and “the proper cause requirement is substantially related to these interests.” 

The City of Austin allows on-premises billboards to be digitized but not off-premises billboards.  In City of Austin, Texas v. Reagan National Advertising of Texas Inc.* two outdoor advertising companies claim that this distinction is “content-based” under the First Amendment.  
In Reed v. Town of Gilbert (2015), the Supreme Court held that content-based restrictions on speech are subject to strict scrutiny, meaning they are “presumptively unconstitutional” under the First Amendment.
In Reed the Court defined “content-based” broadly to include distinctions based on “function or purpose.”  
Per Austin’s Sign Code, “off-premises” signs advertise “a business, person, activity, goods, products or services not located on the site where the sign is installed.” 
The City argued that the definition of off-premises is a time, place, or manner restriction based on the location of signs. 
The Fifth Circuit disagreed, stating: “Reed reasoned that a distinction can be facially content based if it defines regulated speech by its function or purpose. Here, the Sign Code defines ‘off-premises’ signs by their purpose: advertising or directing attention to a business, product, activity, institution, etc., not located at the same location as the sign.” 

In Houston Community College System v. Wilson the Supreme Court will decide whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.  
David Wilson was an elected trustee of the Houston Community College System (HCC). In response to the board’s decision to fund a campus in Qatar, he arranged robocalls and was interviewed by a local radio station expressing his disagreement with the decision. He filed a lawsuit against HCC after it allowed a trustee to vote via videoconference, which he contended violated the bylaws. He sued the board again when it allegedly excluded him from an executive session. 
The board publicly censured him for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” Wilson sued HCC and the trustees, asserting that the censure violated his First Amendment right to free speech. 
HCC argued that “it had a right to censure Wilson as part of its internal governance as a legislative body and that Wilson’s First Amendment rights were not implicated.” 
The Fifth Circuit disagreed noting it has repeatedly held that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.”  In this case, Wilson was censured because of his speech. 

In Cummings v. Premier Rehab Keller* the Supreme Court will decide whether people who are discriminated against in violation of Title VI, Title IX, Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, or the Affordable Care Act may sue for emotional distress damages.  
Jane Cummings has been deaf since birth and is legally blind. She communicates mostly through American Sign Language (ASL). She contacted Premier, which offers physical therapy services, to treat her chronic back pain.  She repeatedly requested that Premier provide an ASL interpreter, but it refused.  She sued Premier under the Rehabilitation Act and the ACA for disability discrimination and sought emotional distress damages. 
The Fifth Circuit held that emotional distress damages aren’t available under these statutes. The Rehabilitation Act and the ACA are Spending Clause legislation.  According to the Fifth Circuit, the Supreme Court has “repeatedly” likened Spending Clause legislation to contract law—“in return for federal funds, the [recipients] agree to comply with federally imposed conditions.” 
In Barnes v. Gorman (2002), the Supreme Court explained compensatory damages are available under Spending Clause legislation because federal-funding recipients are “on notice” that accepting such funds exposes them to liability for monetary damages under general contract law. In Barnes, the Supreme Court also held that punitive damages aren’t available under Spending Clause legislation because they aren’t generally available for breach of contract. 
According to the Fifth Circuit, emotional distress damages, like punitive damages are “traditionally unavailable in breach-of-contract actions.” So, the court held, federal-funding recipients aren’t on notice of them and can’t be held liable for them. 

Conclusion 

While the gun case will steal the spotlight, all of the cases summarized in this article have relatively far-reaching consequences for local governments. Reed v. Town of Gilbert has resulted in the invalidation of numerous state laws and local ordinances. The sign case gives the Court an opportunity to clarify—and ideally—narrow Reed. The censure case could affect any city council or county board. And the emotional distress damages case is relevant to numerous statutes which apply to local governments.  Only time will tell how any of these cases come out. 

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 July 11, 2021 through August 10, 2021. 

Tort Claims Act: Anderson v. Waller Cty., No. 01-20-00097-CV, 2021 WL 3042677 (Tex. App.—Houston [1st Dist.] July 20, 2021) (mem. op.).  This is an alleged sexual assault case brought under the Texas Tort Claims Act (TTCA) where the appellate court affirmed the granting of the county’s plea to the jurisdiction.  

Anderson alleged that while incarcerated at the county jail, she was taken to her cell by an unknown female jailor and given a minor amount of food and water. She took mayonnaise and obstructed the security camera. After eating her food, she claims she blacked out and therefore assumed she had been drugged.  She asserts she was sexually assaulted then released. Anderson brought claims against the county, the sheriff, and several jailors for sexual assault, assault, intentional infliction of emotional distress, and negligence. She amended her pleadings indicating the misuse or malfunctioning of security cameras lead to the assaults as well as providing unsafe food. The county filed several pleas to the jurisdiction, which were eventually granted. Anderson appealed. 

A plaintiff’s failure to provide the statutorily-required notice deprives the trial court of jurisdiction and requires the court to dismiss the plaintiff’s case. Knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.  Further, mere investigation of an incident or injury does not show that a governmental unit had actual notice for purposes of the TTCA.  Anderson’s written notice was provided four years after her incarceration and nothing in the record indicates the county was aware, for actual notice purposes, that Anderson had reported her claims to the Texas Rangers. Finally, the court held that when a plea is granted and the pleadings consist of only pleading defects which could be cured, the dismissal may be without prejudice, but if the petition could not possibly allege facts demonstrating a waiver of immunity, or if the plaintiff had been given an adequate opportunity to replead and failed, then the dismissal should be with prejudice. Accordingly, the appellate court held that the trial court properly granted the plea with prejudice.* 

Tort Claims Act: Univ. of Tex. MD Anderson Cancer Ctr. v. Simpson, No. 01-20-00679-CV, 2021 WL 3083104 (Tex. App.—Houston [1st Dist.] July 22, 2021) (mem. op.).  This is an interlocutory appeal in a premise defect/Texas Tort Claims Act (TTCA) case where the appellate court reversed the denial of the MD Anderson’s plea and dismissed the plaintiff’s claims.   

Simpson was a visitor to MD Anderson when she slipped and fell “due to a wet slippery floor.”  Simpson alleged that she did not know that a clear liquid had caused her to fall until she heard someone near the nurse’s station point out the liquid and admit they should have cleaned it up. Simpson did not know the identity of any of the persons who were present at the nurse’s station. MD Anderson asserted it did not receive any reports of substances or liquids being spilled or present on the floor where Simpson fell and did not receive any reports of falls at that location before Simpson fell.  Simpson asserted that anyone who would have admitted to knowing the water was there must be an employee of MD Anderson.  The hospital asserted that an unidentified person commenting on the water does not establish a fact issue that the person was an MD Anderson employee. The trial court denied the plea and MD Anderson appealed. 

To prove actual knowledge, the plaintiff must show that the governmental unit actually knew of the dangerous condition at the time of the accident.  Actual knowledge of an unreasonably dangerous condition can sometimes be proven through circumstantial evidence.  However, circumstantial evidence establishes actual knowledge only when it “either directly or by reasonable inference” supports that conclusion.  MD Anderson produced evidence that non-employees of MD Anderson can be present at a nurse’s station and wear scrubs. The appellate court found that MD Anderson had met its burden, and that Simpson did not dispute MD Anderson’s facts or prove actual knowledge through circumstantial evidence.  As a result, the plea should have been granted.* 

Tort Claims Act: Garcia v. City of W. Columbia, No. 01-20-00653-CV, 2021 WL 3159676 (Tex. App.—Houston [1st Dist.] July 27, 2021) (mem. op.).  Garcia sued the City of West Columbia for injuries allegedly sustained as a result of work on a municipal water and sewer project. This was the second appeal before the appellate court. In the first appeal, the appellate court addressed the city’s plea to the jurisdiction, in which it asserted governmental immunity. The trial court had denied the city’s jurisdictional plea, and the appellate court affirmed in part and reversed in part.  Now, in this second appeal, the city moved for traditional and no-evidence summary judgment on several grounds. The trial court granted the city’s summary judgment motion without stating a particular basis. Garcia appealed. The appellate court affirmed the trial court’s summary judgment as Garcia had failed to submit any evidence that his exposure at the work site caused his injuries.  

Takings/Zoning: City of Grapevine v. Muns, No. 02-19-00257-CV, 2021 WL 3419675 (Tex. App.—Fort Worth Aug. 5, 2021).  This appeal arises from a challenge to the City of Grapevine’s municipal ordinance banning short-term rentals (STRs).  Plaintiffs own residential properties in Grapevine that they lease to others on a short-term basis.  The city passed an ordinance expressly prohibiting STRs in the city.  As a result, the plaintiffs sued the city, requesting declarations that the STR Ordinance violates their substantive due-course-of-law rights, is preempted, and is unconstitutionally retroactive.  Plaintiffs also asserted a regulatory-takings claim and sought injunctive relief. 

The city moved for summary judgment and filed a plea to the jurisdiction arguing that the trial court lacked subject-matter jurisdiction over this case because: (1) the plaintiffs failed to exhaust their administrative remedies; (2) the plaintiffs were seeking an advisory opinion on the STR Ordinance because they have not challenged the city’s existing zoning ordinance under which STRs are not a permitted use in the first place; (3) the plaintiffs’ regulatory takings claim is invalid; and (4) governmental immunity bars the plaintiffs’ claims for declaratory and injunctive relief.  The trial court disagreed and denied the city’s motion and plea.  The city then filed an interlocutory appeal, contending in five issues that the trial court lacked jurisdiction and thus erred by denying the city’s jurisdictional plea.  The appellate court reversed and rendered in part and affirmed in part. 

Given the nature of real property rights, the appellate court concluded that the plaintiffs had a vested right to lease their properties and that this right was sufficient to support a viable due course of law claim.  Because the plaintiffs had pleaded valid claims challenging the constitutionality of the STR Ordinance, the city was not immune from the plaintiffs’ requests for injunctive relief. However, the appellate court did find that the plaintiffs failed to plead a facially valid preemption claim.  Therefore, the court reversed the part of the trial court’s order denying the city’s amended plea to the jurisdiction as to that claim and rendered judgment dismissing it. The appellate court affirmed the remainder of the trial court’s order. 

Zoning: Draper v. City of Arlington, No. 02-19-00410-CV, 2021 WL 2966139 (Tex. App.—Fort Worth July 15, 2021).  This is an appeal arising from a challenge to two City of Arlington municipal ordinances regulating short-term rentals (STRs). Plaintiffs own residential properties in the City of Arlington that they have leased to others on a short-term basis. The city adopted two complementary ordinances: (1) an ordinance amending the city’s Unified Development Code to specifically allow STRs as permitted uses only in certain areas of the city; and (2) an ordinance regulating the operation of STRs. As a result, plaintiffs sued the city and its mayor, seeking declarations that both ordinances violate their due-course-of-law and equal protection rights under the Texas Constitution and that the STR ordinance’s prohibition against STR tenants congregating outdoors on the premises during certain hours violates the tenants’ assembly and freedom of movement rights under the Texas Constitution.  

The plaintiffs applied for a temporary injunction to enjoin the city and the mayor from enforcing the ordinances. The trial court denied the application, and the plaintiffs appealed.  The appellate court affirmed the trial court’s order holding that the regulations adopted by the city were rationally related to legitimate governmental interests and within the city’s police powers.  Moreover, the appellate court concluded that the plaintiffs lacked standing to raise a violation of the tenants’ assembly and freedom of movement rights. 

Takings/Code Enforcement: Vorwerk v. City of Bartlett, No. 03-21-00001-CV, 2021 WL 3437889 (Tex. App.—Austin Aug. 6, 2021) (mem. op.).  The Bartlett Municipal Court declared a 1986 Toyota mobile home to be a junk vehicle. The municipal court found that defendant Hisle was the owner or person in lawful possession of the mobile home.  Hisle was properly notified and appeared in person before the court, and was afforded ample time to remove the mobile home from his property under the city’s ordinance. The mobile home was also declared to be a public nuisance.  The court ordered that, if the mobile home was not immediately removed from the property, the city would remove it.  Vorwerk then filed suit in justice court asserting she owned the vehicle and the city committed a taking by removing the vehicle. The city filed a plea to the jurisdiction which was granted. Vorwerk appealed to the county court at law, and the city filed a plea, which was granted. Vorkwerk appealed. 

The appellate court found that the city and the mayor presented undisputed evidence that Vorwerk was not the registered owner of the mobile home.  Because Vorwerk did not present any evidence that she was the owner of the mobile home at the time of the municipal court proceeding, the court concluded that she did not raise a fact issue concerning her ownership of the mobile home at the time of the municipal court hearing.  Accordingly, the trial court properly dismissed the case for lack of jurisdiction.* 

Handgun Notice: Paxton v. City of Austin, No. 03-19-00501-CV, 2021 WL 3085845 (Tex. App.—Austin July 22, 2021) (mem. op.).  The attorney general (AG) filed suit against the city under former section 411.209 of the Texas Government Code, alleging two types of violations: (1) the display of a permanent etched glass “no guns” sign that “depicts a handgun inside of a circle with a line through it;” and (2) oral warnings prohibiting the carrying of handguns on the premises of city hall.  The AG requested civil penalties in the amount of $1,500 per day of violation and attorney’s fees. During the trial, a citizen testified that he sent the city notices to remove a pictorial sign prohibiting the carrying of guns and was orally told he could not enter the premises. The trial court dismissed the claims related to the city’s prohibition picture of a gun with a circle and line through it, but held the AG met its burden of proof as to other warnings (including oral warnings) on six separate days. The trial court ordered penalties of $9,000 against the city. The city did not appeal, but the AG did, asserting that the court should not have dismissed the pictorial violation and the city should have been penalized over $5 million due to continuing violations. 

The appellate court affirmed the civil penalties imposed by the trial court against the city but denied the AG’s request for stronger penalties as a matter of law.  Because the AG had not raised any complaint until his appeal regarding the trial court’s award of a $1,500 per diem amount rather than the mandatory $10,000 minimum authorized by the statute for subsequent violations, the court could not review that issue as it was not preserved.* 

Breach of Contract: City of Del Rio v. Arredondo, No. 04-20-00409-CV, 2021 WL 3376948 (Tex. App.—San Antonio Aug. 4, 2021) (mem. op.).  This is a breach of contract suit where the appellate court held that because the city’s plea only challenged non-jurisdictional facts, so the plea was properly denied.  

The city hired Arredondo as its city manager. The parties entered into an employment agreement (Agreement), which provided that Arredondo served “at the pleasure of the City Council.”  The city council later voted to terminate the Agreement, and Arredondo then sued the city, alleging that the city council did not obtain a majority vote to terminate his employment, which constituted a breach of contract claim. He also pled an alternative breach of employment contract claim. The city filed a plea to the jurisdiction, which was denied. 

Section 271.152 of the Texas Local Government Code waives governmental immunity for the adjudication of certain breach of contract claims. The city asserts that the contract did not alter the employment-at-will doctrine and that the city complied with the contract. The crux of this appeal is whether the facts asserted by the city are “jurisdictional facts.”  Not all facts relating to the merits are necessarily jurisdictional facts. The court determined that the at-will nature and the city’s compliance with the contract, in this situation, were not jurisdictional facts, so the plea was properly denied.* 

Trespass to Title: City of San Antonio v. Davila, No. 04-20-00478-CV, 2021 WL 3376949 (Tex. App.—San Antonio Aug. 4, 2021) (mem. op.).  This is a trespass to try title case where the appellate court reversed the denial of the city’s plea to the jurisdiction but remanded to allow plaintiffs the ability to replead.   

The Davilas sued the city in a trespass to try title action, alleging that, as part of closing and abandoning a street and conveying parcels to adjoining landowners in 1987, the city deeded the subject property to the Davilas’ parents.  Alternatively, they allege they adversely possessed the property. The city filed a plea to the jurisdiction asserting that the city issued a quit claim deed authorizing the sale of the property to their parents.  The quit claim deed contains a metes-and-bounds description of the subject property, reserves a utility easement, and recites that the city passed an ordinance authorizing the sale of the property to their parents. The trial court denied the plea and the city appealed. 

The Davilas argue Section 16.005 of the Texas Civil Practice and Remedies Code waives the city’s governmental immunity, which relates to road closure ordinances.  They did not request relief from the city’s ordinance under Chapter 16, which authorized the sale or abandonment of property, but from the quitclaim deed itself.  The court determined that the quit claim deed did not waive immunity.  Additionally, when a city is sued in a trespass to try title action based on adverse possession, governmental immunity is not waived, and the trial court lacks subject matter jurisdiction.  As a result, the appellate court determined that the claims, as alleged, do not waive immunity.  However, because the plea attacks the pleadings only and the city did not argue or explain why the pleading defect—suing the city instead of government officials for ultra vires acts—is incurable, the Davilas must be given the opportunity to amend their pleadings.* 

Jurisdiction: Mims v. City of Seguin, No. 04-20-00355-CV, 2021 WL 3057506 (Tex. App.—San Antonio July 21, 2021) (mem. op.).  A group of homeowners whose property was damaged by flooding from a city sewage project sued the city, asserting inverse condemnation and nuisance claims.  The trial court granted the city’s plea to the jurisdiction.   

The appellate court concluded that the city’s plea challenged only the sufficiency of the homeowners’ pleadings and did not present evidence to negate the existence of the jurisdictional facts alleged by the homeowners. Because the trial court did not allow the homeowners to cure any deficiencies and granted the plea outright, the appellate court held that under these circumstances, the standard of review permits the court to affirm only if the homeowners’ pleadings affirmatively and incurably negate the trial court’s subject matter jurisdiction. The court determined that the homeowners’ pleadings did not affirmatively and incurably negate the trial court’s subject matter jurisdiction. As a result, the facts alleged by the homeowners establish the trial court’s jurisdiction. The court; therefore, reversed the trial court’s judgment and remanded for further proceedings. 

Jurisdiction: City of San Antonio v. San Antonio Park Police Officers Assoc., No. 04-20-00213-CV, 2021 WL 2942531 (Tex. App.—San Antonio July 14, 2021) (mem. op.).  This is a civil service/collective bargaining suit where the San Antonio Park Police Officers Association (SAPPOA) sought declaratory relief for three distinct issues related to the legal classification of the city’s park and airport police officers: (1) that San Antonio’s park and airport police officers are “police officers” entitled to collectively bargain with the city and can receive both current and future benefits of the collective bargaining agreements entered into between the city and the San Antonio Police Officers Association (SAPOA) under chapter 174 of the Texas Local Government Code (Chapter 174); (2) that park and airport police officers are “police officers” entitled to collectively bargain with the city and can receive both current and future benefits of the collective bargaining agreements entered into between the city and SAPOA under chapter 143 of the Texas Local Government Code (Chapter 143); and (3) that the city manager is acting ultra vires by denying park and airport police officers the opportunity to collectively bargain.  The city and the city manager filed a plea to the jurisdiction.  The trial court denied the plea, and the city and city manager filed an interlocutory appeal, asserting that SAPPOA had not established a waiver of immunity through the Uniform Declaratory Judgments Act (UDJA) or Chapters 143 or 174. 

The court determined that section 174.023 provides a limited waiver of immunity.  Because SAPPOA clearly alleged a violation of their right to collective bargaining under Chapter 174, these factual allegations were sufficient to establish the subject matter jurisdiction of the court.  However, SAPPOA did not allege or argue that Chapter 143 provides for a waiver of immunity for their declaratory judgment claim.  As a result, the court determined that SAPPOA did not request a declaration concerning the validity of Chapter 143, but instead sought a declaration as to the park and airport police officers’ rights under this chapter. Thus, the court held that the UDJA does not waive the city’s immunity with respect to their declaratory claim pursuant to Chapter 143.  Finally, the court held that SAPPOA alleged sufficient facts that, if taken as true, would confer standing for their ultra vires claims.  Accordingly, the appellate court affirmed in part and reversed in part the city’s plea to the jurisdiction.* 

Due Process/Inverse Condemnation: City of Dallas v. Reggie, No. 05-20-00646-CV, 2021 WL 3196963 (Tex. App.—Dallas July 28, 2021) (mem. op.).  The city towed two of plaintiff’s vehicles for being parked for more than 24 hours in the same spot in violation of a city ordinance.  The city sold the vehicles at an auction almost a month after impounding them and after sending two certified letters.  The plaintiff filed a lawsuit seeking an injunction before the auction but served the city after the auction.  The city appealed the denial of its plea to the jurisdiction.  The court reversed the denial and found: (1) there is no waiver of immunity for plaintiff’s unlawful seizure claim; (2) plaintiff failed to establish a clam for inverse condemnation because he did not contest the validity or constitutionality of the city ordinances or Texas Transportation Code provisions permitting the impoundment and sale of abandoned or unattended vehicles; (3) plaintiff’s due process claims were insufficient to state a claim because he didn’t allege any policy or custom existed that deprived him of his due process rights; and (4) plaintiff’s injunction claims were moot. 

Employment/Whistleblower: City of Fort Worth v. Birchett, No. 05-20-00265-CV, 2021 WL 3234349 (Tex. App.—Dallas July 29, 2021) (mem. op.).  The plaintiff brought a whistleblower action against the city, claiming that he was terminated less than 90 days after he made good faith reports of the city’s violation of law to the appropriate law enforcement authorities.  The city argued that the plaintiff: (1) did not make good-faith reports of a violation of law to an appropriate law enforcement authority; (2) was terminated for performance shortcomings, not reporting violations of law; and (3) after his termination, failed to properly initiate the city’s whistleblower grievance procedure. The trial court denied the city’s plea to the jurisdiction. 

In affirming the denial of the plea to the jurisdiction, the appellate court found: (1) there was a question of fact as to whether the plaintiff made a good faith report of the city’s violation of law to law enforcement, including that the police chief’s memo said the city’s violations could result in “serious administrative and criminal sanctions;” (2) the city’s argument that the decision maker didn’t know about the plaintiff’s reports was unpersuasive because the city presented no evidence to support that assertion; and (3) the plaintiff had satisfied the grievance procedure by sending a letter through his counsel.  

Employment: Limas v. City of Dallas, No. 05-19-01223-CV, 2021 WL 3197334 (Tex. App.—Dallas July 28, 2021) (mem. op.).  After the city terminated her for having several conflicts with coworkers in a new department in violation of city personnel rules, the plaintiff sued the city claiming race discrimination, retaliation, hostile work environment, and harassment.  The trial court granted the city’s plea, dismissing all of the plaintiff’s claims. The appellate court affirmed the trial court’s judgment and found that: (1) the plaintiff failed to demonstrate a material fact issue regarding disparate treatment because the comparator she put forth was distinguishable; (2) the plaintiff’s complaints regarding her conflicts with coworkers were not protected activity under the Texas Commission on Human Rights Act; and (3) the plaintiff failed to demonstrate that she was subject to harassment based on her race. 

Texas Tort Claims Act: Texas A&M Univ. Sys. v. Fraley, No. 07-20-00116-CV, 2021 WL 3282161 (Tex. App.—Amarillo July 30, 2021) (mem. op.).  The plaintiff sued Texas A&M University System (A&M) for his injuries from a one-vehicle accident where he drove on a portion of a road that he claimed A&M removed without installing new traffic control devices.  The trial court denied A&M’s plea to the jurisdiction and A&M appealed.  

The appellate court found that: (1) A&M had complied with its obligations to timely appeal; (2) A&M’s decisions to eliminate a roadway and not install a new traffic control or safety devices were discretionary roadway design decisions excluded from liability under the Texas Tort Claims Act; (3) the removal of the portion of road was not a special defect because it was not a threat to the ordinary users of a particular roadway; and (4) the plaintiff’s claims did not give rise to a misuse of tangible personal property. Therefore, the appellate court reversed the trial court and dismissed the plaintiff’s claims for lack of jurisdiction. 

Excessive Force/Section 1983: Klassen v. Gaines Cty., No. 11-19-00266-CV, 2021 WL 2964423 (Tex. App.—Eastland July 15, 2021) (mem. op.). This is an excessive force/Section 1983 case where the Eastland Court of Appeals affirmed the trial court’s granting of the county’s dispositive motion. 

Deputies responded to a disturbance involving possible aggressive actions by Klassen. Klassen was ordered to the ground and, while one of the deputies was attempting to put Klassen into the prone position, Klassen moved his hands and the deputy used his body weight to move Klassen into position. This caused Klassen to strike his chin on the ground, knocking out several teeth and breaking his jaw.  Klassen sued. The deputies filed a motion to dismiss under the Texas Tort Claims Act (TTCA), which the trial court granted. They then filed a motion for summary judgment for the remaining federal and state claims. The trial court granted the motion as to the state claims, leaving the federal claims pending. Klassen then filed an amended petition which was almost exactly the same as the previous petition except that he attached an expert’s opinion that the force used was excessive. In response, appellees filed another motion to dismiss and a motion for summary judgment in the alternative, which the trial court granted. Klassen appealed the granting of the motion. 

The court of appeals specifically noted that the trial court stated in its order that it examined the entire record when it dismissed Klassen’s claims, indicating that the trial court dismissed the claims under the motion for summary judgment as opposed to the motion to dismiss under the pleadings. When doing so, the standard for determining whether a trial court made an appropriate holding when it considered certain summary judgment evidence is a review for an abuse of discretion. In this case, the court found no such abuse. The court found dismissal of the deputies was proper under the TTCA. Second, the court found there was no excessive force after reviewing the video. Third, the court found that qualified immunity shielded the deputies as Klassen was unable to establish specific actions constituted a violation of clearly established law. The court found Klassen had suffered no “constitutional injury” via the excessive force claim, so the county could not be held liable for any failure to train its deputies.* 

Governmental Immunity: City of Mission v. Gonzalez, No. 13-20-00138-CV, 2021 WL 3085988 (Tex. App.—Corpus Christi July 22, 2021) (mem. op.).  One evening in 2017, Gonzalez injured her knee in a fall while taking out her garbage.  Although the fall was on private property, she sued the city, claiming the fall was caused by mud created by water which leaked from a faulty water line repair.  The city filed a plea to the jurisdiction claiming immunity from suit, but the trial court denied the plea.  The city appealed, arguing that Gonzalez failed to properly notify the city pursuant to the requirements of the Texas Tort Claims Act (TTCA).  Alternatively, the city argued that the TTCA’s notice requirements would have been satisfied if the city had actual notice that an injury had occurred to a particular individual that was at least partially the city’s fault.  Gonzalez could not establish that either sufficient notice under the TTCA or actual notice had been given to the city.  As a result, the appellate court reversed the trial court and dismissed the case for want of jurisdiction. 

Governmental Immunity: Hidalgo Cty. Det. Center v. Huerta, No. 13-20-00113-CV, 2021 WL 3085853 (Tex. App.—Corpus Christi July 22, 2021) (mem. op.).  Huerta, who was an inmate in the Hidalgo County Detention Center, sued the county for damages after he was injured when a table he was sitting at failed.  The county filed a plea to the jurisdiction claiming immunity from suit because the county did not have knowledge of the dangerous condition, while Huerta had knowledge of the table’s dangerous nature. The trial court denied the plea, and the county appealed.  

Because the table had failed at least three previous times in the same way and injured at least one other inmate before injuring Huerta, the court held that the county did have notice of the dangerous condition.  However, because Huerta was an experienced welder who watched the table being repaired and admitted that he knew the repair was inadequate, the county had no duty to make the condition reasonably safe for him. Accordingly, the court reversed the trial court’s judgment and dismissed the case for lack of jurisdiction. 

Governmental Immunity: City of Houston v. Gantt, No. 14-20-00229-CV, 2021 WL 3416990 (Tex. App.—Houston [14th Dist.] Aug. 5, 2021) (mem. op.).  Gantt sued the city alleging injuries after being struck by a patrol car driven by a Houston police officer. The city filed a plea to the jurisdiction claiming it was immune from suit due to Gantt’s failure to properly notify the city of the claim, but the trial court denied the plea. The city appealed.  

The city can be subject to tort liability under the Texas Tort Claims Act (TTCA), but the TTCA contains notice requirements which must be followed. Alternatively, if the city had actual notice that an injury had occurred to a particular individual that was at least partially the city’s fault, the TTCA’s notice requirements would have been satisfied. Additionally, cities may by ordinance or charter put additional notice requirements in place, which the city had done.  In this case, police reports and fire department transport records related to the crash were not sufficient to put the city on actual notice of a claim, and Gantt was unable to show that he had otherwise complied with the city or TTCA notice requirements. The appellate court reversed the trial court and dismissed the case for want of jurisdiction. 

Preemption: Houston Prof’l Fire Fighters Ass’n v. Houston Police Officers Union, No. 14-19-00427-CV, 2021 WL 3206056 (Tex. App.—Houston [14th Dist.] July 29, 2021).  In 2003, the City of Houston adopted collective bargaining under the Fire and Police Employee Relations Act (FPERA) to govern fire fighter and police officer compensation and other conditions of employment.  Fifteen years later, the city charter was amended to provide pay parity between Houston police officers and fire fighters (Pay Parity Amendment). The Houston Police Officers Union (HPOU) filed suit for declaratory judgment on whether the Pay Parity Amendment was preempted by FPERA. Entry of the state into a field of legislation does not automatically preempt city regulation, and for a statute to preempt a home rule charter or ordinance, the preemption must be stated with “unmistakable clarity.” Competing state and local regulations will be given as much effect as possible while avoiding inconsistency.  After a long and detailed discussion of preemption jurisprudence in Texas, the appellate court held that the Pay Parity Amendment was not preempted by FPERA.  

Governmental Immunity: Foreman v. Lyndon B. Johnson Hosp., No. 14-19-00733-CV, 2021 WL 3161440 (Tex. App.—Houston [14th Dist.] July 27, 2021) (mem. op.).  Seventeen years after his conviction for sexual assault of a child, Foreman filed suit against several parties, including the City of Houston Police Department, raising complaints related to DNA tests and medical swabs which led to his conviction.  Foreman alleged he was injured through the non-use of medical laboratory equipment such as microscopes and specific clamps. The city filed a plea to the jurisdiction, which was granted by the trial court. While the use of certain types of property can waive sovereign immunity under the Texas Tort Claims Act, non-use of property does not. The appellate court affirmed the dismissal.   

Governmental Immunity: Branch v. Fort Bend Cty., No. 14-19-00447-CV, 2021 WL 2978639 (Tex. App.—Houston [14th Dist.] July 15, 2021) (mem. op.).  Branch was an inmate in the Fort Bend County Jail in 2016 when he injured his spine and head after falling on a concrete floor that was wet from a burst pipe.  He sued the county for damages resulting from his injuries. The county filed a plea to the jurisdiction claiming immunity from suit due to Branch’s failure to properly notify the county of the claim under the Texas Tort Claims Act (TTCA), and the trial court dismissed Gantt’s suit. He appealed.  

A local governmental entity can be subject to tort liability under the TTCA, but the TTCA contains notice requirements which must be followed. Alternatively, if the entity had actual notice that an injury had occurred to a particular individual that was at least partially the city’s fault, the TTCA’s notice requirements would have been satisfied.  In this case, Branch had, in fact, failed to give notice within the six-month time frame required by the TTCA, and the facts that (1) the injury occurred while Branch was under county supervision, (2) in a county facility, and (3) county personnel tended to his injuries were not sufficient to put the county on actual notice of a claim.  The appellate court affirmed the trial court’s dismissal of the case for want of jurisdiction. 

Takings/Jurisdiction: San Jacinto River Auth. v. Lewis, No. 14-19-00696-CV, 2021 WL 2931280 (Tex. App.—Houston [14th Dist.] July 13, 2021).  Lewis sued the San Jacinto River Authority (SJRA) for a taking related to property damage caused by the SJRA’s release of water from Lake Conroe during Hurricane Harvey, alleging constitutional inverse condemnation claims in Harris County district court. SJRA filed a plea to the jurisdiction: (1) challenging the subject matter jurisdiction of the district court over constitutional inverse condemnation claims; and (2) alleging that appellees failed to plead sufficient facts demonstrating a waiver of governmental immunity. The trial court denied SJRA’s plea to the jurisdiction, which SJRA appealed.  

Section 25.1032 of the Texas Government Code squarely places jurisdiction over eminent domain proceedings brought in Harris County with the county civil court at law rather than the district court. Additionally, in his original petition, Lewis neither made reference to statutory takings causes of action from Chapter 2007 of the Government Code, nor alleged waiver of SJRA’s immunity under that chapter.  The appellate court held that Lewis failed to make a statutory takings claim, reversed the trial court’s order denying SJRA’s plea to the jurisdiction, and rendered judgment dismissing appellee’s claims for lack of subject matter jurisdiction. 

*Indicates case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to www.rshlawfirm.com. 

Recent Texas Attorney General Opinions of Interest to Cities 

Note:  Included opinions are from July 11, 2021 through August 10, 2021. 

KP-0380 (Face Coverings): Texas Executive Order GA-38 prohibits governmental entities from requiring any person to wear a face covering or to mandate that another person wear a face covering. Federal orders issued by the Centers for Disease Control (CDC) and the Transportation Security Administration (TSA) attempt to require persons traveling on public transit to wear a mask and to require local transit authorities to enforce the federal mandate. However, a court could conclude that the CDC and the TSA lack statutory authority to issue the face covering orders, particularly with respect to intrastate public transit systems. 

Furthermore, a court may have a basis to conclude that TSA’s directive violates the Americans with Disabilities Act or is an unconstitutional attempt to commandeer local officials to enforce a federal regulatory scheme. Given the many concerns regarding the authority of the CDC and TSA to issue the federal orders requiring facial coverings on public transport, we are unable to definitively conclude that those orders preempt the Governor’s Executive Order GA-38. 

KP-0379 (COVID-19 Vaccine):  Pursuant to Executive Order GA-38, Texas state agencies and political subdivisions may not condition an individual’s access to a government facility on receipt of a vaccine administered under emergency use authorization and not yet approved by the Food and Drug Administration (FDA). 

Furthermore, pursuant to Senate Bill 968, passed by the Eighty-seventh Legislature, a governmental entity in Texas may not issue a COVID-19 vaccine passport or any other documentation certifying COVID-19 vaccination status for any purpose other than health care. Implicit in this prohibition is that a governmental entity may not issue a COVID-19 vaccine passport and condition entry to a governmental facility on possession of it. This prohibition is not limited to vaccines issued under emergency use authorization and therefore will also apply to COVID-19 vaccines with full FDA approval. 

KP-0378 (Contingent Fee Contracts):  House Bill 2826 from the Eighty-sixth Legislature amended subchapter C of chapter 2254 of the Government Code to add certain requirements to contingent fee contracts for legal services entered into on or after September 1, 2019. Senate Bill 1821 from the Eighty-seventh Legislature, effective on May 19, 2021, broadened the reach of those requirements by amending the definition of “contingent fee contract” in subchapter C to include amendments to contingent fee contracts under certain circumstances. 

To the extent a contract amendment expands the scope of legal services to encompass a new legal matter, whether made before or after May 19, 2021, a court could find on particular facts that the amended contract is subject to chapter 2254 requirements regarding the governmental approval process, Attorney General approval, and a cap on fees. A contract amendment subject to chapter 2254 of the Government Code but failing to meet the law’s requirements is void under subsection 2254.110.