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February 2025
Notice and Announcements
SAVE THE DATE – 2025 TCAA Summer Conference
The 2025 TCAA Summer Conference at the Horseshoe Bay Resort in Horseshoe Bay will take place June 18-20, 2025. Conference registration and hotel block reservations will open in March. Please watch your inbox for more details in the coming weeks!
89th Legislative Session
The 2025 legislative session began on January 14. Stay informed by checking TML’s Legislative Update weekly for summaries of city-related bills and associated articles.
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
2024 Fall Conference, 2024 Summer Conference, and Paralegal Program Webinars
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 https://vimeo.com/tcaawebinars/collections. If you need the password, please email [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 Federal Supreme Court Cases of Interest to Cities
Note: Included cases are from January 1, 2025, through January 31, 2025.
Fair Labor Standards Act: E.M.D. Sales, Inc. v. Carrera, No. 23-217, 2025 WL 96207 (U.S. Jan. 15, 2025). In this case, sales representative employees of E.M.D. Sales, Inc. sued the food distributor for failing to pay overtime wages, arguing they were not exempt under the Fair Labor Standards Act (FLSA). The employer claimed the employees fell into the “outside sales” exemption to the FLSA and were not entitled to overtime. Ruling in favor of the employees, the district court found that because E.M.D. failed to prove by clear-and-convincing evidence that the sales representatives were salesmen, the company was liable for the overtime. E.M.D. appealed arguing that the district court should have used the preponderance-of-the-evidence standard rather than the clear-and-convincing evidence standard, but the Fourth Circuit Court of Appeals affirmed the decision.
In a unanimous decision, the Supreme Court reversed the lower court, clarifying that the appropriate standard of proof in FLSA exemption cases is the less stringent preponderance-of-the-evidence standard, not the clear-and-convincing standard. The Court reasoned that the preponderance-of-the-evidence standard was the default standard in civil litigation and the Court has only deviated from this standard in three distinct circumstances, none of which applies to cases involving exemptions to the FLSA. The three circumstances include: (1) when a statute provides for a heightened standard of proof; (2) when the U.S. Constitution requires a heightened standard of proof; and (3) if the case involves coercive government action against an individual, such as taking away a person’s citizenship.
Recent Federal Fifth Circuit Cases of Interest to Cities
Note: Included cases are from January 1, 2025, through January 31, 2025.
Civil Rights: Bailey v. Ramos, 125 F.4th 667 (5th Cir. 2025). David Bailey and his friends went to downtown San Antonio to film the police and encountered Officers Oscar Ramos and Christopher Dech, who were guarding an ambulance. After an altercation where he allegedly failed to comply with police instructions and engaged in physical contact with Officer Ramos, Bailey was arrested. Bailey brought a 42 U.S.C. § 1983 action against Officer Ramos alleging unlawful arrest, excessive force, malicious prosecution, and First Amendment retaliation, among others. In district court, Ramos moved for summary judgment based on qualified immunity, but the court denied the motion and Ramos appealed. In reversing the lower court, the Fifth Circuit held that Officer Ramos was entitled to qualified immunity on Bailey’s unlawful arrest and excessive force claims. The court concluded that Ramos could have reasonably believed he had probable cause for the arrest for interference with a public duty where Bailey continued to talk over officers and failed to follow officers’ instructions to move behind the line at the active crime scene. Further, to Bailey’s claim that Ramos illegally seized his cell phone and belongings, Ramos was also entitled to qualified immunity as a warrantless search incident to a lawful arrest is a permissible exception to the warrant requirement. The court also determined that Ramos’s takedown procedures and leg sweep maneuver were not clearly excessive or unreasonable given Bailey’s noncompliance. Lastly, the court determined there was no evidence of a retaliatory motive for the arrest, precluding Bailey’s First Amendment retaliation claim.
Civil Rights: Stapleton v. Lozano, 125 F.4th 743 (5th Cir. 2025). Joshua Stapleton was arrested for public intoxication and later died in jail from combined drug toxicity. His family filed a 42 U.S.C. § 1983 action against the City of Progreso, two police officers, and the police chief, alleging deliberate indifference to Stapleton’s serious medical needs while in jail in violation of the Fourteenth Amendment. In response, the officers and police chief filed a motion to dismiss based on qualified immunity, which the district court later denied. In reversing the lower court, the Fifth Circuit reasoned that the evidence showed Stapleton’s symptoms were initially ambiguous and did not indicate a need for immediate medical attention, and Stapleton himself never requested medical assistance. The court held that even reviewing the facts in the light most favorable to the Stapletons, the facts alleged against the officers and police chief did not rise to the level of “wanton disregard” or deliberate indifference to Stapleton’s serious medical needs.
Civil Rights: Cantu v. Austin Police Dep’t, No. 24-50397, 2025 WL 229490 (5th Cir. Jan. 17, 2025). In January 2019, Austin Police Department officers encountered Paul Cantu, who was experiencing suicidal and mental distress. After repeatedly being instructed to drop his weapon, Cantu exited his car with a handgun and pointed it at officers. Officers then fired sixteen rounds, striking Cantu five times, which led to his death after being transported to the hospital. Cantu’s parents sued Austin Police Department and seven of its police officers asserting a failure to accommodate claim under Title II of the Americans with Disabilities Act (ADA) and a 42 U.S.C. § 1983 claim alleging a Fourth Amendment violation for excessive force. The city and officers sought summary judgment. The district court granted the motion, and the Cantus appealed. The Fifth Circuit Court of Appeals, in affirming the lower court, held that the officers’ use of force was not objectively unreasonable given the tense and uncertain circumstances. Further, the court concluded that the ADA does not apply to officers’ on the street responses to incidents involving individuals with mental disabilities prior to securing the scene and ensuring no threat to human life.
Search and Seizure: United States v. Turner, 125 F.4th 693 (5th Cir. 2025). When San Antonio police officers responded to two calls reporting gunshots at an apartment complex, officers discovered a bullet hole in the wall of an apartment. Jonte Turner, who identified himself as a resident of the apartment, denied consent for a search, prompting officers to conduct a warrantless entry and protective sweep. During this time, they found firearms and magazines in plain view and arrested Turner. A subsequent search warrant led to the seizure of firearms, magazines, and marijuana. Turner moved to suppress the physical evidence arguing their warrantless entry, sweep, and subsequent search violated his Fourth Amendment rights. The district court denied Turner’s motion, and he appealed. In affirming the lower court, the Fifth Circuit held that because exigent circumstances and probable cause existed, the officers’ warrantless entry into Turner’s apartment did not violate the Fourth Amendment. The court reasoned that the potential danger posed by an unaccounted-for firearm and the possibility of an injured person or shooter inside the apartment suggested exigent circumstances, and the officers’ belief that immediate action was necessary to ensure safety was reasonable. Further, probable cause existed to believe that a firearm had been discharged in Turner’s apartment. As for the sweep of the apartment, the court determined it was limited in scope and duration, lasting approximately one and a half minutes covering only areas where a person could be hidden, and firearms and magazines found in plain view during the sweep were lawfully observed. Because the record showed officers’ protective sweep was lawful and they obtained and executed the search warrant in good faith, the court dismissed Turner’s claim that the affidavit was based on deliberately or recklessly false information or unlawfully obtained evidence.
Recent Texas Cases of Interest to Cities
Note: Included cases are from January 1, 2025, through January 31, 2025.
Tort Claims Act: Harris Cnty. v. McFarland, No. 01-24-00331-CV, 2025 WL 51847 (Tex. App.—Houston [1st Dist.] Jan. 9, 2025) (mem. op.). McFarland filed a premises liability claim against Harris County under the Texas Tort Claims Act after she caught her sandal on the corner of an entryway mat at a county office and fell. The county filed a plea to the jurisdiction claiming governmental immunity. McFarland subsequently amended her appeal. The trial court denied the county’s plea and the county appealed.
The appellate court reversed and rendered, holding that: (1) the county’s plea to the jurisdiction was not moot merely because it was filed prior to McFarland’s amended pleading because the amended pleading did not advance any new claims; and (2) McFarland did not establish a waiver of the county’s immunity because she had not demonstrated a fact issue as to whether the county had actual knowledge of a dangerous condition.
Tort Claims Act: City of Houston v. Tran, No. 01-24-00235-CV, 2025 WL 309723 (Tex. App.—Houston [1st Dist.] Jan. 28, 2025) (mem. op). Tran sued the City of Houston and Houghlen, a city employee, under the Texas Tort Claims Act (TTCA) after a collision involving her vehicle and a city police vehicle driven by Houghlen. Houghlen filed a motion to dismiss, claiming that he was entitled to dismissal under the TTCA’s election-of-remedies provision because Tran had sued both him and the city. The trial court denied the motion and Houghlen appealed. The appellate court affirmed, holding that Houghlen was not entitled to dismissal because the motion to dismiss had been filed on his own behalf only and the TTCA’s election-of-remedies provisions require a court to dismiss an employee only on a motion by the city.
Tort Claims Act: City of Garland v. Pena, No. 05-24-00133-CV, 2025 WL 99785 (Tex. App. Jan. 15, 2025). Benjamin David Pena, a temporary worker for a staffing agency, sued the City of Garland, alleging premises liability and negligence after being crushed by a dump truck at the city’s landfill. The city, in response, filed a plea to the jurisdiction, which the trial court initially granted. Pena appealed the decision, and the court of appeals remanded the case to the lower court to allow Pena to amend his pleading. After Pena filed his amended petition, the city filed its plea to the jurisdiction claiming immunity under the Texas Tort Claims Act (TTCA). After a hearing, the trial court denied the city’s plea, and the city appealed.
In reversing the lower court, the court of appeals held that: (1) Pena’s allegations constituted a negligence claim rather than a premises liability claim where his injuries were caused by an act or activity, specifically the backing up of the dump truck by a third party, not by the condition or use of the city’s tangible real property; (2) although Pena alleged the city’s landfill was generally dangerous and the city could have found safer ways to operate the facility, he failed to sufficiently plead any facts that the city had actual knowledge of a specific condition posing an unreasonable risk of harm that caused his injuries; (3) public policy did not support extending sovereign immunity to include general allegations that a location was dangerous which would subject a landowner to premises liability for all injuries occurring on his property; (4) the city had no duty to protect another from the negligent acts of a third person; and (5) on his negligence claim, Pena failed to establish how a city employee waiving a truck driver in specific direction constituted “operation” or “use” of a motor-driven vehicle as required by the TTCA.
Contracts: Baylor Cnty. Special Util. Dist. v. City of Seymour, No. 11-24-00071-CV, 2025 WL 336966 (Tex. App. Jan. 30, 2025). The City of Seymour filed a breach of contract suit against Baylor County Special Utility District, alleging that Baylor violated their contract by purchasing water from a third party instead of exclusively from the city. Baylor claimed governmental immunity and argued that the contract was not a “requirements contract.” The trial court partially granted Baylor’s plea to the jurisdiction, dismissing the city’s claims for declaratory judgment, injunctive relief, and attorney’s fees but allowed the breach of contract claim to proceed. Both parties appealed the lower court’s order.
Although the court of appeals affirmed the lower court’s dismissal of the city’s claims for declaratory and injunctive relief, it remanded the case to the trial court with instructions to exclude any damage claims for which there is no statutory immunity and to allow the city to amend its pleadings to specify permissible damages, if any. In reaching its holdings, the court concluded Baylor is a governmental entity entitled to governmental immunity where it had converted its entity type under Chapter 65 of the Texas Water Code which governs the creation of a special utility district and was not subject to Chapter 10 of the Business Organizations Code. However, in reviewing the plain language of the contract, the court determined that the contract in question was a “requirements contract” obligating Baylor to purchase all its required water from the city for which the city could seek recovery, as statutorily permitted (not including lost profits, which are considered consequential damages for which governmental immunity is not waived). Further, the contract was executed by Baylor County Special Utility District, not in 1994 when it was executed by Baylor Corporation, but when it accepted the assignment and operated in accordance with the contract’s terms. Because this occurred after June 19, 2009, Local Government Code Section 271.153(c) applied, and the city was permitted to recover reasonable and necessary attorney’s fees.
Tort Claims Act: Lincoln Property Company v. Herrera, No. 13-23-00276-CV, 2025 WL 339036 (Tex. App.—Corpus Christi–Edinburg Jan. 30, 2025) (mem. op.). Herrera filed a premises liability claim under the Texas Tort Claims Act against Lincoln Property Company (Lincoln), SP II Limited Partnership (SP II), and the San Antonio Housing Authority Foundation (SAHA) after her mother, Maria, fell on the sidewalk at a public housing apartment complex operated on behalf of SAHA by Lincoln and SP II. Maria later died of her injuries. Lincoln, SP II, and SAHA filed a plea to the jurisdiction claiming governmental immunity. The trial court denied the plea and this appeal followed.
The appellate court reversed and remanded, holding that: (1) although Lincoln and SP II are private entities, they were entitled to governmental immunity because they were subsidiaries of SAHA, a housing authority, with no independent discretion; and (2) Maria was an invitee rather than a licensee because she paid rent to live at the complex; and (3) the pleadings neither demonstrated nor negated jurisdiction because they did not address the question of whether there was constructive knowledge of the alleged premises defect, so the claim was remanded to the trial court for further proceedings.
Tort Claims Act: Sanchez v. City of Houston, 2025 WL 271313 (Tex. App.—Houston [14th Dist.] Jan. 23, 2025).Melissa Sanchez sued the City of Houston, alleging that a mounted police officer recklessly charged into her with his horse during a protest, causing injuries. The trial court granted the city’s motion for summary judgment and plea to the jurisdiction based on governmental immunity, while Sanchez’s motions for a new trial and continuance were denied. Sanchez appealed. Cities are generally immune from suit and liability, unless that immunity has been waived by the Legislature. The Texas Tort Claims Act (TTCA) waives governmental immunity in certain circumstances, including circumstances where the use of tangible personal property causes injury or death. In this case, Sanchez alleged that the city’s immunity was waived by the TTCA due to the use of a horse to cause her injuries. The TTCA, however, does not apply to claims when the injury is connected to an act or omission arising from civil disobedience. Because the events occurred during a protest, which the court concluded was an act of civil disobedience, the TTCA’s waiver of governmental immunity did not apply; therefore, the trial court’s rulings were affirmed in the city’s favor.
Heck Doctrine: City of Houston v. Busby, 2025 WL 336968 (Tex. App.—Houston [14th Dist.] Jan. 30, 2025).Following a collision with a City of Houston fire truck, Randy Busby pleaded no contest to a charge of failure to yield to an emergency vehicle. Later, Busby sued the city for injuries sustained during the same collision, alleging that the driver of the fire truck negligently ran a red light without using his emergency lights or sirens. The city sought summary judgment, arguing, among other things, that Busby’s claims were barred because he had pleaded no contest in the previous criminal case stemming from the same incident. The trial court denied the city’s summary judgment motion, and the city appealed. The Heck doctrine prevents civil claims that would imply the invalidity of a prior criminal conviction unless that conviction has been reversed, expunged, or invalidated. Busby’s claims against the city were based on allegations that the driver failed to use emergency lights and sirens, which, if true, would contradict Busby’s prior no contest plea, making his claims impermissible under Heck. Following Heck, the appellate court reversed the trial court’s ruling and rendered judgment dismissing Busby’s claims against the city.
Tort Claims Act: City of Houston v. Polk, 2025 WL 339175 (Tex. App.—Houston [14th Dist.] Jan. 30, 2025) (mem. op.).Betram Polk sued the City of Houston after a collision with a police officer’s vehicle, alleging the officer negligently failed to control his speed. Rather than filing a plea to the jurisdiction, the city moved to dismiss Polk’s claims arguing (1) Polk failed to provide timely notice under the Texas Tort Claims Act (TTCA), (2) the officer was protected by official immunity, and (3) the emergency exception to the TTCA applied. The trial court denied the city’s motion to dismiss, and the city appealed. When ruling on the motion to dismiss, a court must rely on the content of the pleadings without considering extrinsic evidence. Because Polk’s pleadings sufficiently alleged facts establishing that timely notice was made and negating the emergency exception, while the city’s pleadings failed to conclusively establish the defense of official immunity, the appellate court affirmed the trial court’s dismissal of the city’s motion.
Contracts: City of Rio Vista v. Johnson County Special Utility Dist., 2025 WL 309937 (Tex. App.—15th Dist. Jan. 28, 2025) (mem. op.).The Johnson County Special Utility District (District) sued the City of Rio Vista for breach of an interlocal agreement resolving water service boundary disputes. The agreement included provisions regarding emergency water connections and a requirement for notice and consent before extending water lines into the other party’s service area. The District alleged that the city violated the agreement by extending water lines into the District’s service area and misusing an emergency connection agreement to calculate its water service capacity. The city filed a plea to the jurisdiction, arguing governmental immunity. The trial court denied the city’s plea, and the city appealed. Cities are generally immune from lawsuit or liability unless immunity has been waived by the Legislature. Chapter 271 of the Texas Local Government Code waives a city’s immunity from suit for contract disputes related to the provision of goods or services to the city. In this case, the court held the interlocal agreement not to be a contract for goods or services; therefore, the city’s immunity was not waived from the District’s breach of contract claim. Consequently, the appellate court reversed the trial court’s order and rendered judgment dismissing the District’s claims.
Recent Texas Attorney General Opinions of Interest to Cities
Note: Included opinions are from January 1, 2025, through January 31, 2025.
KP-479 (Sheriff’s Authority to Contract): Only the commissioners court may generally contract for the authorized provision of law enforcement services involving county business.
Texas law recognizes the practice of law enforcement officers providing private-security services, outside of that provided to a county, for direct compensation.
The status of a school district as a political subdivision does not affect its statutory authority to directly contract for private-security services by a law enforcement officer.
No statute conditions the provision of private-security services on the presence of a mass gathering of people.
January 2025
Notice and Announcements
SAVE THE DATE – 2025 TCAA Summer Conference
The 2025 TCAA Summer Conference at the Horseshoe Bay Resort in Horseshoe Bay will take place June 18-20, 2025
89th Legislative Session
The The 2025 legislative session began on January 14. Stay informed by checking TML’s Legislative Update weekly for summaries of city-related bills and associated articles.
TCAA Establishes the Art L. Pertile, III Scholarship
At its October 2024 board meeting, the TCAA Board of Directors approved the creation of the Art L. Pertile, III Scholarship in honor of Art Pertile.
Art has devoted more than three decades of his legal career to the practice of public and municipal law, focusing on representing local government entities. He began his career as an Assistant City Attorney for the City of Waco and later served as Assistant Harris County District Attorney, Assistant City Attorney for the City of Houston, and City Attorney for the City of Waco. He is currently Senior Counsel at Olson & Olson, LLP in Houston. Art is past President of the International Municipal Lawyers Association, has served on the Texas Municipal League and Texas State Bar Government Lawyers Board of Directors, and is past president of the Texas City Attorneys Association. In addition, Art is a mentor and a role model for many municipal attorneys.
In Art’s honor, TCAA will provide one scholarship to a TCAA active member to attend an IMLA Annual Conference. The scholarship recipient will receive a reimbursement of up to $2,500 for expenses that the recipient’s city or law firm would have otherwise provided for attendance at the conference, including registration, travel, meals, and lodging at the conference hotel. The winner will be drawn from lots. Winners, including recipients of the Susan C. Rocha Memorial Scholarship, from previous years are not eligible.
The scholarship is generously funded by Art’s friends. If you would like to make a donation to the scholarship please click here.
Volunteer Opportunity
The YMCA Texas Youth and Government Program allows high school participants to show off their knowledge through legislative sessions, mock trials, media publications, and elections held during State (Feb. 28, 2025-March 2, 2025) Conference in Austin. The judicial section depends on practicing attorneys and legal staff to judge student performances on mock trial and moot court teams. Interested individuals can find links to fill out a volunteer interest form for the various district events and the State Conferences here: https://ymcatexasyg.org/get-involved/volunteer/.
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
2024 Fall Conference, 2024 Summer Conference, 2024 Riley Fletcher Seminar, and Paralegal Program Webinars
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 https://vimeo.com/tcaawebinars/collections. If you need the password, please email [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/5185/Amicus-Brief-Status-21125
Recent Federal Fifth Circuit Cases of Interest to Cities
Note: Included cases are from December 1, 2024, through December 31, 2024.
Environmental Law: Ondrusek v. U.S. Army Corps of Engineers, 123 F.4th 720 (5th Cir. 2024). Timpy Ondrusek and Barbara Ann Ondrusek Wolfe owned property affected by a joint flood protection project being undertaken by the U.S. Army Corps of Engineers (Corps) and the City of Dallas. The project began in 1999 with an Environmental Impact Statement under the National Environmental Policy Act (NEPA) and was supplemented in 2003. The plaintiffs claimed that the Corps failed to prepare a Supplemental EIS (SEIS) to address updated flood risks, climate change data, and engineering guidance which changed following Hurricane Katrina. They argued that the oversight violated NEPA and the Clean Water Act and posed risks of flooding and contamination to their property, so the plaintiffs filed suit against the Corps and the city seeking declaratory and injunctive relief. Because the design phase of the project was only 35% complete, the district court dismissed the plaintiffs’ claims as unripe, so the plaintiffs appealed. Because NEPA claims ripen when the alleged procedural failure occurs – here the Corps’ failure to file the SEIS, the court found no further factual development was necessary and concluded judicial review would not interfere with the Corps’ actions. Therefore, the claims against the Corps were ripe. The city was dismissed from the suit, because there were no claims against the city on appeal. Ultimately, the Fifth Circuit reversed and remanded the dismissal of claims against the Corps, holding that the claims ripe and the plaintiffs had standing, while the dismissal of claims against the City of Dallas was affirmed.
Qualified Immunity: Jack Miller, et al. v. Chief Joseph Salvaggio, et al., No. 23-50894, 2024 WL 5116799 (5th Cir. Dec. 16, 2024). Jack Miller entered Leon Valley City Hall in 2018 openly carrying a device resembling a Glock handgun. The municipal building, which includes a courtroom, prohibits weapons per Texas Penal Code § 46.03. After observing the gun-like device, officers secured search and arrest warrants for Miller, who was later arrested. The gun was later revealed to be a painted rubber replica, and the prosecution against Miller was dismissed for lack of evidence. Miller, joined by family members, filed a § 1983 lawsuit against the city alleging violations of their Fourth Amendment rights to be free from illegal search and seizure and First Amendment rights to be free from retaliatory arrest. Both sides filed motions for summary judgement. The district court granted qualified immunity to the officers on all claims, granted the city’s motion for summary judgment, and dismissed Miller’s motion. Miller appealed. Qualified immunity protects government officials, including police officers, from civil liability unless they violate a clearly established constitutional right at the time of the conduct. In this case, the city showed through video and other evidence that the officers had probable cause to believe that Miller was carrying a firearm in violation of the law. The court emphasized that the officers’ reasonable belief that the gun was real precluded liability, even if the gun was later discovered to be fake. Ultimately the appellate court upheld the trial court’s dismissal of Miller’s claims against the city.
Recent Texas Cases of Interest to Cities
Note: Included cases are from December 1, 2024, through December 31, 2024.
Employment: City of Buffalo v. Moliere, No. 23-0933, 2024 WL 5099112 (Tex. Dec. 13, 2024). Moliere, a police officer, engaged in a high-speed chase while a civilian was riding along in his patrol vehicle, resulting in an accident that damaged the patrol vehicle. Moliere reported the accident to the city’s chief of police, who issued Moliere a written reprimand. Moliere did not appeal the reprimand; he accepted and signed it. About two weeks later, during a regularly scheduled meeting, the city council met in closed session to discuss Moliere’s employment. The city council then reconvened in open session and voted to terminate Moliere. Moliere brought action against the city, the mayor, and the city council members, seeking declaration that the city council acted without authority in terminating his employment, and alleging the termination violated his due process rights.
The trial court dismissed the suit, but the Waco Court of Appeals reversed and remanded, concluding that a fact issue existed as to whether the city council had authority to terminate the officer. The Supreme Court granted the petition for review and reversed the court of appeals’s judgement, finding that the city council had authority to fire the officer. Additionally, the Court remanded the case for further proceeding because the court of appeals did not address whether the officer alleged a valid due process claim against members of the city council.
Tort Claims Act: City of Houston v. Rodriguez, No. 23-0094, 2024 WL 5249666 (Tex. Dec. 31, 2024). A city police officer engaged in a high-speed pursuit of another vehicle struck the driver and the passenger of a truck who subsequently sued the city, alleging that the officer’s negligent driving caused them personal injuries for which the Tort Claims Act (Act) waives governmental immunity from suit. The city filed a motion for summary judgement arguing that: (1) the Act waives immunity only when the employee would be personally liable, and official immunity shields the officer from liability because he was acting in good faith; and (2) the Act’s emergency exception to the waiver applies because the officer was not acting recklessly in responding to an emergency. The trial court denied the motion and the court of appeals affirmed.
The Supreme Court reversed the Houston Court of Appeals’s judgement, holding that because the officer acted in good faith during the pursuit, he was protected from personal liability by official immunity, and the city’s governmental immunity was not waived under the Act.
Tort Claims Act: City of Austin v. Powell, No. 22-0662, 2024 WL 5249451 (Tex. Dec. 31, 2024). A motorist, who was injured when a police officer involved in high-speed chase collided with the motorist’s vehicle, sued the city to recover damages for his injuries. The trial court denied the city’s plea to the jurisdiction, and the city appealed. The Austin Court of Appeals affirmed.
The Supreme Court granted the city’s petition for review. The Supreme Court reversed, holding that: (1) the statute requiring the operator of motor vehicle to maintain distance between vehicles was a law of general applicability and was not specifically applicable to emergency action, for purposes of whether the emergency exception to waiver of immunity under Tort Claims Act (Act) applied to the motorist’s action; (2) the statute permitting certain conduct in operating an emergency vehicle did not make all other traffic laws binding in emergency contexts, for purposes of whether the emergency exception applied to immunity waiver under Act; (3) whether the police officer violated department policy was immaterial to the inquiry of whether a law or ordinance existed specifically addressing the emergency response at issue, for purposes of whether the emergency exception applied to immunity waiver under the Act; (4) the motorist did not establish that the police officer’s failure to control his speed was reckless to obviate the emergency exception to immunity waiver under the Act; (5) the motorist did not establish that the police officer’s failure to maintain distance with the police vehicle that the officer was following was reckless to obviate the emergency exception to immunity waiver under the Act; (6) the motorist did not establish that the police officer’s inattentiveness leading up to accident was reckless to obviate the emergency exception to immunity waiver under the Act; and (7) the motorist did not establish that a combination of the police officer’s acts was reckless, as required not to apply the emergency exception to immunity waiver under the Act.
Employment: Dallas Cnty. Hosp. Sys. v. Kowalski, No. 23-0341, 2024 WL 5249566 (Tex. Dec. 31, 2024). A former county hospital employee filed suit alleging that the hospital eliminated her position because she was disabled, and in retaliation for her earlier complaints about the accommodation process. The trial court denied the hospital’s plea to the jurisdiction, and the Dallas Court of Appeals affirmed. The Supreme Court granted the hospital’s petition for review.
The Supreme Court reversed finding that: (1) the employee failed to establish a disability within the meaning of the Labor Code’s prohibition against disability discrimination; (2) the hospital did not discriminate against the employee based on disability; (3) the hospital did not regard the employee as having an impairment; and (4) the hospital did not retaliate against the employee for her earlier complaints about its accommodation process.
Tort Claims Act: Harris County v. Jones, No. 01-24-00214-CV, 2024 WL 5160516 (Tex. App.—Houston [1st Dist.] Dec. 19, 2024) (mem. op.). Jones sued Harris County under the Texas Tort Claims Act (TTCA) after a motor vehicle collision involving Sutton, a county deputy. Sutton was pursuing a suspect in a stolen vehicle with his lights and siren activated when he maneuvered his vehicle across a highway on-ramp. Jones, who was driving on the on-ramp, struck Sutton’s vehicle. The county filed a plea to the jurisdiction, claiming governmental immunity under the emergency-response exception to the TTCA’s limited waiver of immunity. The trial court denied the plea and the county appealed.
The appellate court reversed and rendered judgement dismissing Jones’s claims, holding that the emergency-response exception applied because Sutton was responding to an emergency, he had his lights and siren activated, and Jones had not offered evidence sufficient to create a genuine issue of material fact as to whether Sutton acted with reckless disregard for the safety of others.
Procedure: Dallas Police & Fire Pension Sys. v. Townsend Holdings, et al., No. 05-23-00099-CV, 2024 WL 5134654 (Tex. App. Dec. 17, 2024) (mem. op.). In 2015, after the Dallas Police & Fire Pension System (DPFP) faced significant real-estate investment losses and its actuary reported DPFD was insolvent, DPFD authorized its new executive director to hire a law firm to review possible claims related to prior investment transactions. After the investigation concluded, DPFD sued its real estate investment consultant, Townsend Holdings LLC, its principals, and its former attorney, Gary Lawson, for a breach of fiduciary duty, breach of contractual duty, and negligence. At trial, Townsend’s attorney argued to the jury that DPFD attorneys had been deceptive, coached witnesses before trial, and manufactured the case. While DFPD’s lawyers did not immediately object, they notified the court and Townsend the next morning of their position that Townsend’s attorney had engaged in incurable jury argument but did not request a ruling or curative instruction. After the jury found that Townsend had not breached its fiduciary duties or contractual duties, both parties were negligent, and awarded a take-nothing judgment, DFPD moved for a new trial. The motion was later denied by operation of law, and DPFD appealed.
In upholding the denial of DPFD’s motion for new trial, the court of appeals first addressed whether the comments made by Townsend’s attorney were incurable. Noting that while some comments were improper, the court concluded the evidence supported some of the complained-of jury arguments and as a whole were not shown to be incurably “extreme,” “inflammatory,” and “prejudicial.” As to DPFD’s second issue that the evidence was factually insufficient to support a jury finding that Townsend did not breach a fiduciary or contractual duty, the court of appeals disagreed and determined that evidence at trial presented by both parties could have supported the jury’s findings. As a result, DPFD failed to show that the evidence was so weak or that the jury’s findings were so against the great weight and preponderance of the evidence that they were clearly wrong and unjust.
Condemnation: Edukid, LP v. City of Plano, No. 05-23-00269-CV, 2024 WL 5244613 (Tex. App. Dec. 30, 2024) (mem. op.). In 2017, the City of Plano initiated condemnation proceedings to acquire an easement on a portion of Effat Saifi’s property (later transferred to Edukid, LP) for the construction of a hike-and-bike trail after negotiations with Saifi failed. After a hearing, special commissioners assessed damages, and Saifi objected to the award. In 2021, during the trial court proceedings, the city filed a traditional and no evidence motion for partial summary judgment on jurisdictional issues, and the trial court granted the motion. Then, in February 2023, the trial court granted a directed verdict for the city on the remaining issue relating to the value of the property, and Edukid appealed. Affirming the lower court’s judgment, the court of appeals concluded as to the partial summary judgment ruling that the city was authorized under Local Government Code § 273.001 to acquire property for public purposes, including for parks, and the city’s evidence was sufficient to show it intended to use the property for public use as a hike-and-bike trail to reduce pedestrian traffic related accidents, for which the taking was necessary. Further, nothing in the record supported Edukid’s argument that the city’s condemnation determination was fraudulent, made in bad faith, or arbitrary and capricious. Addressing Edukid’s due process argument, the court of appeals held that Edukid failed to cite to any legal authority mandating personal notice of the council meeting at which the council authorized the city manager and city attorney to acquire the easement, whether through negotiations or condemnation proceedings. As for the directed verdict, the court of appeals similarly held that Edukid failed to produce evidence on the value of the property or damages to the remainder.
Condemnation: Milberger Landscaping, Inc. v. City of San Antonio, No. 08-23-00283-CV, 2024 WL 5099206 (Tex. App.—El Paso Dec. 12, 2024) (mem. op.). Milberger Landscaping, Inc. challenged the City of San Antonio, acting through the San Antonio Water System (SAWS), over its condemnation of a portion of land for a permanent easement to construct a sewer pipeline and additional temporary construction easements. After the parties failed to agree on compensation, SAWS filed a condemnation petition, citing the public purpose of upgrading public infrastructure. Following a special commissioner’s hearing, Milberger was awarded $230,000 as compensation, which the city deposited with the court in order to obtain possession of the property and continue the project. Milberger filed objections to the award, and SAWS moved for partial summary judgment, seeking to establish its compliance with procedural requirements and to dismiss Milberger’s affirmative defenses of fraud, bad faith, and arbitrary and capricious action. The trial court granted SAWS’s motion, leaving only the question of adequate compensation for trial. Milberger appealed the dismissal under a permissive interlocutory appeal. On appeal, the court analyzed the public use, fraud, bad faith, and evidentiary claims, ultimately affirming the trial court’s partial summary judgment and remanded the case solely for determination of the appropriate compensation for the taking.
Standing and Jurisdiction: Donalson v. Houston Mennonite Fellowship Church, Inc., et al., No. 12-24-00194-CV, 2024 WL 5158419 (Tex. App.—Tyler Dec. 4, 2024) (mem. op.). This case arises from long-running disputes among a number of parties over ownership and use of some real property in Canton, Texas. In this case, Barney Jo Donalson, Jr. (acting pro se) claimed an ownership interest in a room on the property and challenged a 2020 stipulated permanent injunction governing the property’s use. The Houston Mennonite Fellowship Church, Inc. (HMFC) and Robert Coyle, who essentially was claiming to represent the public’s interest, also asserted claims against the City of Canton and sought an injunction. The city filed a plea to the jurisdiction, arguing that Donalson, HMFC, and Coyle lacked standing to file any of their claims. The trial court granted the plea, dissolved a preliminary injunction obtained by Donalson in a different Harris County court, and severed Donalson’s unrelated breach of contract claims concerning a separate Houston property. Donalson, HMFC, and Coyle appealed. After analyzing the different standing issues, the appellate court ultimately affirmed the lower court’s ruling, holding that: (1) Donalson, HMFC, and Coyle all lacked standing; (2) the trial court lacked subject matter jurisdiction over their claims; and (3) dissolution of the preliminary injunction and severance of unrelated claims were proper.
Tort Claims Act: Hernandez v. Cameron County, No. 13-23-00098-CV, 2024 WL 5087387 (Tex. App.—Corpus Christi–Edinburg Dec. 12, 2024) (mem. op.). Hernandez sued Cameron County after a motor-vehicle collision involving Gonzalez, a county deputy. The county filed a plea to the jurisdiction claiming governmental immunity, arguing that the emergency-response exception under the Texas Tort Claims Act (TTCA) applied because Gonzalez was responding to a burglary in progress when the collision occurred. The trial court granted the county’s plea to the jurisdiction. Hernandez appealed, arguing that there was a genuine issue of material fact regarding whether Gonzalez acted recklessly when responding to the emergency, which would negate the emergency-response exception. Hernandez claimed that Gonzalez disregarded a red light and entered the intersection at high speed without using his siren, while Gonzalez claimed he slowed down and had his siren and lights activated.
The appellate court reversed and remanded, holding that there was a genuine issue of material fact as to whether Gonzalez acted with reckless disregard for the safety of others.
Inverse Condemnation: Litinas v. City of Houston, No. 14-23-00746-CV, 2024 WL 4982561 (Tex. App.—Houston [14th Dist.] Dec. 5, 2024). Nicholas Litinas, owner of a flower shop in the City of Houston, filed an inverse condemnation claim against the city and another local redevelopment authority. He alleged that modifications they were planning, including curbing and driveway reductions, would eliminate the head-in parking spaces essential to his business, damaging the market value of his property. The city filed a plea to the jurisdiction, arguing that the planned modifications were entirely within the city’s right-of-way and did not materially impair access to Litinas’s property. The trial court granted the plea, dismissing the case for lack of jurisdiction, and Litinas appealed.
Governmental immunity from suit can be waived if a taking, damaging, or destruction of property is established. Additionally, if access is materially and substantially impaired, it can constitute a compensable taking. In this case, while alternative access points and parking spots would remain after the project, the remaining access is incompatible with the property’s specific use as a flower shop, which is reliant on convenient, head-in parking, which was completely eliminated by the project. Ultimately the appellate court reversed and remanded the trial court’s decision, holding that Litinas presented sufficient evidence of material and substantial impairment of access to survive the city’s plea to the jurisdiction.
Tort Claims Act: LaRose v. City of Sugar Land, No. 14-24-00198-CV, 2024 WL 5053216 (Tex. App.—Houston [14th Dist.] Dec. 10, 2024) (mem. op.). Pshatoia LaRose filed a pro se lawsuit against the City of Sugar Land, alleging negligence and failure by its police department to investigate her reports of stalking, harassment, theft of phone data, property damage, and other misconduct. She claimed damages of $161,822, asserting that the city failed to adhere to state law requiring a fair investigation of her complaints. The trial court dismissed the case for lack of subject-matter jurisdiction after the city filed a plea to the jurisdiction based on governmental immunity. Cities in Texas are generally immune from suit unless a valid statutory or constitutional waiver of immunity applies. The court discussed how the Texas Tort Claims Act waives immunity in limited circumstances involving (1) injuries caused by motor vehicles, (2) the use of tangible property, or (3) real property, but since LaRose’s claims did not fall into any of these categories, the court found no such waiver in LaRose’s claims. Moreover, LaRose did not cite any other statutory basis to support waiving the city’s governmental immunity. Consequently, the judgment dismissing LaRose’s case for lack of subject-matter jurisdiction was affirmed.
Tort Claims Act: LaRose v. City of Missouri City, No. 14-24-00197-CV, 2024 WL 5051187 (Tex. App.—Houston [14th Dist.] Dec. 10, 2024) (mem. op.). Pshatoia LaRose filed a pro se lawsuit against the City of Missouri City, alleging negligence and failure by its police department to investigate her reports of stalking, harassment, theft of phone data, property damage, and other misconduct. She claimed damages of $253,900, asserting that the city failed to adhere to state law requiring a fair investigation of her complaints. The trial court dismissed the case for lack of subject-matter jurisdiction after the city filed a plea to the jurisdiction based on governmental immunity. Cities in Texas are generally immune from suit unless a valid statutory or constitutional waiver of immunity applies. The court discussed how the Texas Tort Claims Act waives immunity in limited circumstances involving (1) injuries caused by motor vehicles, (2) the use of tangible property, or (3) real property, but since LaRose’s claims did not fall into any of these categories, the court found no such waiver in LaRose’s claims. Moreover, LaRose did not cite any other statutory basis to support waiving the city’s governmental immunity. Consequently, the judgment dismissing LaRose’s case for lack of subject-matter jurisdiction was affirmed.
Workers’ Compensation: Joseph Andre Davis v. City of Houston, No. 14-24-00070-CV, 2024 WL 5087687 (Tex. App.—Houston [14th Dist.] Dec. 12, 2024) (mem. op.). Joseph Andre Davis, a firefighter/paramedic for the City of Houston, sustained a compensable work-related injury in 2015. The city paid him temporary income benefits until August 2016. The parties disputed the extent of Davis’s injury, the date he reached maximum medical improvement (MMI), and his impairment rating. In February 2017, the Division of Workers’ Compensation issued a decision regarding the extent of Davis’s injuries and determining that Davis reached clinical MMI on August 20, 2016, with a 5% impairment rating. Davis unsuccessfully appealed this decision to an appeals panel. Subsequent administrative rulings in 2022 and 2023 established December 16, 2017, as the statutory MMI date and noted Davis had a disability through this period. Davis filed suit seeking enforcement of these later decisions, arguing he was entitled to additional benefits. The city filed a motion for summary judgment, arguing that it had complied with all enforceable orders, and the trial court granted the city’s motion. Davis appealed.
Under Texas workers’ compensation law, MMI defines when an injured employee is no longer entitled to temporary income benefits. MMI can occur either clinically, based on medical evidence, or statutorily, 104 weeks after income benefits begin to accrue. The city argued that Davis’s clinical MMI date of August 20, 2016, was final and binding, and the court agreed. Therefore, Davis could not claim temporary income benefits after August 20, 2016, regardless of any later findings regarding statutory MMI or disability ratings. Ultimately, the appellate court affirmed the trial court’s judgment.
Open Meetings Act: Webb County v. Mares, No. 14-23-00617-CV, 2024 WL 5130862 (Tex. App.—Houston [14th Dist.] Dec. 17, 2024). Cynthia Mares sued Webb County, alleging the commissioners court violated the Texas Open Meetings Act (TOMA) by inadequately notifying the public before their decision to restructure the county’s Administrative Services Department. During the meeting in question, the commissioners court split the department into two, reassigned Mares to a new position, and reduced her salary from $105,000 to $75,000. The agenda for the meeting included an item which referenced general discussion and adoption of the county’s budget but did not mention departmental restructuring or salary reductions. Mares filed a claim following the meeting, and was later terminated by the county. In her lawsuit, among other things, Mares sought back pay and lost retirement benefits and attorney’s fees and costs. The trial court ruled in Mares’s favor, finding a TOMA violation, awarding her $39,000 in back pay and lost retirement benefits, and granting $69,650 in attorney’s fees and costs. Webb County appealed.
TOMA requires specific notice of the subject to be discussed at government meetings. To be sufficient, such notice must fairly identify the meeting and be sufficiently descriptive to alert a reader that a particular subject will be addressed. The agenda item at issue referenced general budget discussions but did not alert the public to the restructuring of the Administrative Services Department or Mares’s salary reduction. Comparing the notice to the actions taken, the appellate court concluded the notice fell short of TOMA’s requirements. TOMA does not waive governmental immunity for claims seeking money damages; therefore, the court concluded that Mares could not recover back pay or retirement benefits essentially stemming from this violation. The court reversed the portion of the judgment awarding back pay and lost retirement benefits and rendered judgment that Mares take nothing on her monetary damages claim, while affirming the trial court’s findings of a TOMA violation and the award of attorney’s fees and costs.