Monthly Newsletter

Notice and Announcements

In Memoriam

TCAA is saddened by the passing of Art Pertile III, on February 25. Art served as a past president of TCAA and the International Municipal Lawyers Association, as well as on multiple boards including the Texas Municipal League, the Government Lawyers Section of the Texas State Bar, The Waco Foundation, and various community organizations. During his illustrious career, Art served as city attorney for the cities of Waco, Katy, and Stafford. At the time of his retirement, Art was an owner and partner at Olson & Olson LLP.

A celebration of his life is being held on March 17 at the Waco Convention Center in Waco. In lieu of flowers, and in honor of Art’s dedication to his profession and community, please consider donating to one of the many organizations he supported. Information on each can be found in the link below. Please keep his family in your thoughts and prayers. A full obituary can be viewed at https://www.legacy.com/us/obituaries/mrt/name/arthur-pertile-obituary?id=57718594

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

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

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

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

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

The recipients of these awards will be honored at the TCAA Summer Conference. In addition, TCAA will provide complimentary registration for the conference. The deadline to submit a nomination is April 25, 2025. The criteria and the nomination form are available here.

Call For Award Nominations: TCAA Outstanding Mentor Award

Just about every lawyer has a mentor who guided his or her career. In an effort to recognize the efforts of a special municipal law mentor, the TCAA Board of Directors created the TCAA “Outstanding Mentor Award.” The award is intended to recognize and honor a municipal attorney for his or her significant and distinguished mentoring achievements related to young attorneys and their practice in the field of municipal law.

The nominee must have demonstrated the qualities of a mentor to one or more young municipal attorneys by: (1) serving as a role model to young municipal lawyers in his or her community; (2) fostering the development of young municipal lawyers; and (3) significantly contributing to the profession and/or the community.

The recipient of this award will be honored at the TCAA Summer Conference. In addition, TCAA will provide complimentary registration for the conference. The deadline to submit a nomination is April 25, 2025. The criteria and the nomination form are available here.

SAVE THE DATE – 2025 TCAA Summer Conference

The 2025 Summer Conference at the Horseshoe Bay Resort in Horseshoe Bay will take place June 18-20, 2025.

The TCAA Summer Conference is the best CLE program created specifically for municipal lawyers. Earn up to 13.00 hours MCLE credit (including 3 ethics hours)! Bring the family to experience everything Horseshoe Bay has to offer and join us as we continue the TCAA tradition of excellence.

For more information, including housing, and to register for this conference, please go to: https://texascityattorneys.org/2025-summer-conference/. Please note that registration opens on April 7, 2025.

Conference Topics Include:

• Legislative Update
• Employment Law
• Code Enforcement
• Eight Liners and Poker Rooms
• Social Media Policies & the First Amendment
• Ethics
• And more!

Call for Applications for Susan C. Rocha Memorial Scholarship and Art L. Pertile, III Memorial Scholarship

Susan Rocha served as an assistant city attorney for the City of San Antonio early in her career, and went on to be a trailblazer in municipal law. She served as president of both the Texas City Attorneys Association and the International Municipal Lawyers Association, and was a mentor and role model for many attorneys in the field due to her hard work, many achievements, and – of course – irrepressible personality.

In Susan’s memory, TCAA will provide four scholarships to in-house city or assistant city attorneys to the 2025 IMLA Annual Conference. Two will be from the eight largest cities (Arlington, Austin, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, or San Antonio), and two will be from the remaining cities. The conference will be in New Orleans, Louisiana October 17 through October 21, 2025. For more details about the conference, go to http://www.imla.org/events/conferences#news.

The winners will receive up to a $2,000 reimbursement for expenses that your city would have otherwise provided for attendance at the conference, including registration, travel, meals, and lodging at the conference hotel. The winners will be drawn from lots. There can only be one winner per city, and winners from previous years are not eligible.

To apply, send an email indicating your interest along with your full name and contact information to [email protected]. The deadline to apply for the drawing is 5:00 p.m. on Friday, May 9, 2025.

Art Pertile, III represented governmental entities and public officials exclusively for almost 40 years. He began his legal career in 1986 as an Assistant City Attorney with the Waco City Attorney’s Office. He also served as an Assistant District Attorney with the Harris County District Attorney’s Office in Houston, Texas and as an Assistant City Attorney with the City of Houston. Art was appointed City Attorney for the City of Waco in February of 1996. In November of 2007 he joined Olson & Olson L.L.P. where he continued his municipal practice and became an owner/partner of the firm until shortly before he retired. Art served as President of the International Municipal Lawyers Association, served on the Texas Municipal League and Texas State Bar Government Lawyers Board of Directors, and served as a past president of the Texas City Attorneys Association. In addition, Art was a mentor and a role model for many municipal attorneys.

As recognition for his tireless work in the public sector, Art received numerous awards, including the “Outstanding Mentor Award” from the Texas City Attorneys Association; the “Marvin Glink Award” from the International Municipal Lawyers Association (for mentoring young lawyers and public service); and the “U.S. Williams Jr. Excellence In Service Award” from the Texas Association of Black City Councilmembers and Mayors.

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 from previous years, including recipients of the Susan C. Rocha Memorial Scholarship, are not eligible.

To apply, send an email indicating your interest along with your full name and contact information to [email protected]. The deadline to apply for the drawing is 5:00 p.m. on Friday, May 9, 2025.

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]. 

Articles

SCOTUS Decides Attorney’s Fee Case in Win for Local Governments

By Amanda Karras, International Municipal Lawyers Association

In Lackey v. Stinnie, the Supreme Court held that a party does not “prevail” under 42 U.S.C. § 1988 for the purposes of attorney’s fees based on obtaining a preliminary injunction, even if the defendant’s conduct later moots the case.  This case was a win for local governments as attorney’s fees awards can be significant and a contrary result would undermine the public fisc. 

In this case, a group of Virginia drivers whose licenses were suspended due to their failure to pay certain fines sued the Virginia Commissioner of the Department of Motor Vehicle under §1983, claiming the law requiring the license suspension was unconstitutional.  The district court preliminarily enjoined the Commissioner from enforcing the statute.  The court based the injunction on the drivers’ likelihood of success on the merits as well as finding the other preliminary injunction factors weighed finding in their favor.  The Commissioner did not appeal the grant of a preliminary injunction.  However, before the case reached trial, the Virginia legislature repealed the challenged law.  The parties agreed the case was moot at this point and stimulated its dismissal.  The drivers thereafter sought attorney’s fees under §1988, claiming “prevailing party” status under the statute.

Under 42 U.S.C. § 1988(b), in certain civil rights cases, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee.”  By way of background, in Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Hum. Res., 532 U.S. 598 (2001), the Supreme Court held for a party to “prevail” under §1988 for the purposes of attorney’s fee awards, the relief must be “judicially sanctioned.”  In other words, “[a] defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change” to have prevailed under the statute.  Id. at 605. Then, in Sole v. Wyner, the Court held that a party has not “prevailed” under §1988 through the award of a preliminary injunction if that injunction is later reversed by a final decision in the case.  Sole v. Wyner, 551 U.S. 74, 83, (2007).

The question presented in this case was left open by Buckhannon and Sole: whether a party that obtains preliminary relief, but never obtains judicially sanctioned relief because of the defendant’s voluntary change in conduct, may be the “prevailing party” who qualifies for an award of attorney’s fees under §1988(b).

The Fourth Circuit sitting en banc, found in favor of the drivers, concluding: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.” Stinnie v. Holcomb, 77 F.4th 200, 210 (4th Cir. 2023).  The Fourth Circuit then explained that “all preliminary injunctions” are “solidly merits-based” and will satisfy the “judicial imprimatur” necessary under Buckhannon. 

In a 7-2 decision authored by Chief Justice Roberts, the Supreme Court reversed, holding that “[a] party ‘prevails’ when a court conclusively resolves his claim by granting enduring relief on the merits that alters the legal relationship between the parties.”  The Court explained that “both the change in relationship and its permanence must result from a judicial order.”  In coming to this conclusion, the Court reasoned that under the “American Rule,” a prevailing litigant is not ordinarily entitled to collect attorney’s fees unless there is express statutory authorization.  Here, the question was what the term “prevailing party” meant at the time Congress enacted the Civil Rights Attorney’s Fee Awards Act in 1976. 

The term “prevailing party” is a legal term of art, which means that courts presume that when Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.’”  And in this case, the Court concluded that “Black’s Law Dictionary [at the time the statute was enacted] defined ‘prevailing party’ as the party “who successfully prosecutes the action or successfully defends against it.”  The term per Black’s Law Dictionary “does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, has successfully maintained it.”

The Court emphasized the transient nature of the preliminary injunctions and held that “[b]ecause preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status.”  In terms of the voluntary change, which mooted the case, the Court explained that enduring change between the parties must be “judicially sanctioned.”  The Court reasoned that its holding “flows naturally” from its prior precedents including Buckhannon and Sole.  Finally, the Court noted that because this is a statutory interpretation case, if Congress believes parties should be entitled to an award of attorney’s fees based on a preliminary injunction, it may amend the statutory language. 

The Local Government Legal Center (NACo, NLC, IMLA, and GFOA) filed an amicus brief in this case, which was authored by Joshua Skinner, Benjamin Gibbs, & Alexnader Lindwall with the City of Arlington, Texas.  The amicus brief explained how interpreting “prevailing party” to allow for attorney’s fees for preliminary injunctions would harm local governments by discouraging local governments from voluntarily changing suspect policies, incentivizing expensive litigation, and draining public resources. 

To read the Court’s decision, click here: https://www.supremecourt.gov/opinions/24pdf/23-621_5ifl.pdf

To read the LGLC’s amicus brief, click here: https://www.supremecourt.gov/DocketPDF/23/23-621/315920/20240627160803607_23-621%20Brief.pdf

Supreme Court Rules in Favor of San Francisco in Important Clean Water Act Case

By Amanda Karras, International Municipal Lawyers Association

In San Francisco v. EPA, in a win for local governments, the Supreme Court held that the EPA is not authorized to impose “end result” provisions in National Pollutant Discharge Elimination System (NPDES) permits and instead it is the EPA’s responsibility to “determin[e] what steps a permittee must take to ensure that water quality standards are met.”  This case helps ensure local governments understand their obligations under the Clean Water Act (CWA).  It will also allow them take advantage of the permit shield in the CWA by complying with the terms of those now clearer NPDES permits.  Penalties for violations of the CWA can result in crushing liability for local governments and the clarity the Supreme Court is requiring the EPA to provide in permits is crucial to avoiding those penalties. 

Under the CWA, when an entity, including local governments, seeks to discharge pollutants into waters of the United States, that entity must obtain a permit from the EPA to do so.  These permits often contain “effluent limitations” – i.e., limitations that provide specific quantities of pollutants that may be discharged.  But as was the case here, they also sometimes contain provisions that make the permittee responsible for the overall water quality where the permittee discharges pollutants.  The Court refers to these types of requirements as “end-result” requirements.  This question here deals with the legality of these “end-result” permit requirements that do not provide any specific limitations on permittees but instead focus on the resulting quality of the water. 

This case arises out of one of San Francisco’s wastewater treatment facilities, which treats combined stormwater and wastewater.  Because heavy rainfall can result in overflows and corresponding discharges of pollutants into the Pacific Ocean, San Francisco has a NPDES permit for this facility.

The EPA imposed many conditions on San Francisco’s permit, which the city did not object to, but the EPA also imposed two end-result requirements, which are at issue in this case.  The first “prohibits the facility from making any discharge that ‘contribute[s] to a violation of any applicable water quality standard” for receiving waters.’”  The second was that the city could not “make any discharge that ‘create[s] pollution, contamination, or nuisance as defined by California Water Code section 13050.’”

After the EPA refused to take out these end-result requirements, San Francisco sued the EPA, making two arguments that the conditions were unlawful.  First, the city argued that “all ‘limitations’ imposed under [the statute] must qualify as effluent limitations.”  The second narrower argument the city advanced was that “even if §1311(b)(1)(C) is not limited to effluent limitations, it does not authorize EPA to impose NPDES permit requirements that condition permitholders’ compliance on whether receiving waters meet applicable water quality standards.”  The Ninth Circuit held the EPA has “broad authority to impose limitations necessary to ensure the discharger’s adherence to ‘any applicable water quality standard’” and upheld the EPA’s end-result requirements here. 

In a decision authored by Justice Alito, the Supreme Court reversed the Ninth Circuit and ruled in favor of San Francisco.  In doing so, it rejected San Francico’s broad argument that the text of §1311(b)(1)(C) is limited to effluent limitations, but agreed with the city’s narrower argument, holding that the EPA exceeded its statutory authority by imposing the end-result requirements in NPDES permits.  The Court relied on the statute’s text, structure, and history of federal water pollution legislation in reaching its conclusion. 

Using dictionary definitions for the text of §1311(b)(1)(C), the Court concluded that the “most natural reading” of the statute, “is that it authorizes EPA to set rules that a permittee must follow in order to achieve a desired result, namely, a certain degree of water quality.”  The problem with the EPA’s approach, the Court explained is that “[s]imply telling a permittee to ensure that the end result is reached is not a ‘concrete plan’ for achieving the desired result.”

The Court further explained that the history of federal water pollution legislation supported its conclusion.  In 1948, Congress passed the Federal Water Pollution Control Act (WPCA), which was premised on having federal authorities review the quality of the water, and if they found it was substandard, they were to work backwards to determine what entity should be held responsible for the pollution.  The Court explained that Congress recognized the inadequacy of this “backward-looking model” when it enacted the CWA in 1972 and “omitted any provision authorizing either the United States or any other party to bring suit against an entity whose discharges were contributing to a violation of those standards.”

Finally, the Court noted that the statutory structure supported its reading of the Clean Water Act.  On this point, the Court explained that entities can be liable for up to $25,000 per day, per violation, for violations of the CWA and that this liability can reach “enormous sums.”  For example, according to the Court, in a suit against San Francisco for another facility, the penalties sought under the CWA are $10 billion.  In terms of how the structure supports its holding, the Court explained that the benefit of the “permit shield” provision, which allows protection from liability for permittees that comply with the terms of the permit, “would be eviscerated if the EPA could impose a permit provision making the permittee responsible for any drop in water quality below the accepted standard.”  The Court also highlighted another structural problem with the EPA’s interpretation, “the absence of any provision dealing with the problem that arises when more than one permittee discharges into a body of water with substandard water quality.” 

The Local Government Legal Center (joined by IMLA, NACo, and NLC as well as Cal Cities) filed an amicus brief in this case, authored by Andre Monette, Shawn Hagerty, and Ana Schwab with Best Best and Krieger.  In that brief, we highlighted that local governments expend significant resources to improve water quality and that vague and “generic” (or “end result”) prohibitions undermine their efforts and that these prohibitions violate the CWA.

Congratulations to San Francisco and thank you to our authors for their great work on this case!

To read the decision, click here: https://www.supremecourt.gov/opinions/24pdf/23-753_f2bh.pdf

To read the amicus brief, click here: https://www.supremecourt.gov/DocketPDF/23/23-753/320981/20240726210051532_23-753%20Brief.pdf

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 Fifth Circuit Cases of Interest to Cities

Note: Included cases are from February 1, 2025, through February 28, 2025.

 Campaign Contributions: Virden v. City of Austin, Tex., 127 F.4th 960 (5th Cir. 2025). Virden, an Austin resident and political candidate, challenged a City of Austin ordinance that restricted candidates from soliciting or receiving campaign contributions until one year before an election. She argued that this ordinance violated her First Amendment free speech rights. The trial court held that the ordinance was unconstitutional and the city appealed.

The appellate court affirmed, holding that the one-year window limiting campaign fundraising was a violation of the First Amendment right to free speech.

Employment: Hawthorne v. Birdville Indep. Sch. Dist., No. 24-10398, 2025 WL 457312 (5th Cir. Feb. 11, 2025). Hawthorne sued his former employer, Birdville Independent School District, under Title VII for a hostile work environment and retaliation, claiming that his supervisor made inappropriate comments about her personal life, which made him uncomfortable at work. Additionally, he suspected he was being paid less because of his gender. He made an inquiry into his salary and was later reassigned to a lower-paying position. The school district moved for summary judgment, the trial court granted the motion, and Hawthorne appealed.

The appellate court affirmed, holding that: (1) Hawthorne failed to establish a prima facie case of a hostile work environment, as he did not allege that his supervisor’s comments affected the terms, conditions, or privileges of his employment; and (2) his salary inquiry was not a protected activity for the purpose of his retaliation claim.

Regulatory Takings: Money v. City of San Marcos, No. 24-50187, 2025 WL 429980 (5th Cir. Feb. 7, 2025). The façade of a home in the Burleson Historic District of San Marcos, Texas bears the initial of a previous owner who was notoriously associated with the Ku Klux Klan. Money, the current homeowner, wished to remove this emblem but could not do so without permission from the city’s historic commission. After the Commission denied the application requesting such permission, Money sued the city, alleging facial and as-applied takings claims. Money claimed that the ordinance requiring they seek permission from the commission before making changes to their home violated the Texas Constitution and that the refusal of permission to remove the emblem constituted a regulatory taking. The district court first determined that the claims were not ripe because Money had not appealed the decision to the zoning board and then sua sponte dismissed all claims for failure to state a claim

The appellate court reversed and remanded, holding that: (1) the facial takings claim was ripe for review because Money was not obligated to exhaust administrative relief; and (2) Money had stated a prima facie as-applied takings claim because regulations of property for purely aesthetic reasons violates the Texas Constitution.

Civil Rights: Bakutis v. Dean, No. 24-10271, 2025 WL 603694 (5th Cir. Feb. 25, 2025). A City of Fort Worth police officer approached Jefferson’s home in response to an open structure call from a neighbor. Without identifying himself as a police officer, he commanded her to show her hands and then fired a shot, killing her. The administrator of Jefferson’s estate filed suit under 42 U.S.C. § 1983, claiming unlawful search and seizure and excessive force. The officer filed a motion to dismiss based on qualified immunity, which the trial court denied, and he appealed.

The appellate court affirmed in part and reversed and remanded in part, holding that: (1) the officer’s use of deadly force without warning was objectively unreasonable under clearly established law; and (2) because the officer was performing a community caretaking function, there was no clearly established law indicating his actions in approaching the house were unreasonable.

Civil Rights: Rincon v. City of Laredo, Tex., No. 24-40168, 2025 WL 603883 (5th Cir. Feb. 25, 2025). Rincon, a property owner in Laredo, Texas, sued the City of Laredo after he was detained and handcuffed at his property near the Mexican border. An officer, mistaking Rincon for a potential suspect due to a recent gun battle across the border, detained and searched him, later handcuffing him and temporarily confiscated the phone on which Rincon was recording the meeting. Rincon alleged unlawful search and seizure, a violation of First Amendment right to record, excessive force, and failure to train. The trial court dismissed most of Rincon’s claims and later granted summary judgment on the remaining claims and Rincon appealed.

The appellate court affirmed, holding that: (1) the officer’s search of Rincon did not violate clearly established law; (2) the temporary confiscation of Rincon’s phone was not a clear violation of his First Amendment rights; (3) Rincon’s resistance to being handcuffed justified the officer’s use of force against him; (4) Rincon had failed to plead any facts to support his failure-to-train claim; and (5) Rincon was unable to show any evidence of injury to support his excessive force claim.

Employment: Thornton v. Univ. of Tex. Southwestern Med. Center, No. 24-10594, 2025 WL 619166 (5th Cir. Feb. 26, 2025). Thornton filed a racial discrimination claim against UT Southwestern Medical Center. Thornton claimed that his manager subjected him to demeaning behavior and differential treatment compared to his non-black colleagues, which he complained of internally. After getting terminated following a leave period, Thornton sued, alleging racial discrimination and retaliation. UT Southwestern filed a motion to dismiss for failure to state a claim. The trial court granted the motion, and Thornton appealed.

The appellate court affirmed, holding that: (1) Thornton had not alleged a prime facie case of discrimination because he failed to identify similarly situated non-black employees who were treated more favorably; and (2) he had not alleged a prima facie case of retaliation because he did not convincingly demonstrate a causal connection between his internal complaints and his termination.

Fair Labor Standards Act: Branch v.  Harris Co. Sherriff’s Office, No. 24-20120, 2025 WL 636313 (5th Cir. Feb. 27, 2025). A group of employees sued the Harris County Sheriff’s Office and Harris County, alleging that the county’s policy requiring an employee to use compensatory time off before any other form of accrued leave violated their right to equal protection, the state law prohibition on wage garnishment, and the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the county and the employees appealed.

The appellate court affirmed, holding that: (1) the county’s policy did not constitute a garnishment because it did not result in a net change to wages; (2) the employees did not show that they were part of a protected class or were being singled out; (3) the FLSA does not prohibit a public employer from compelling the use of compensatory time.

Employment: Long v. City of Llano, No. 24-50663, 2025 WL 655800 (5th Cir. Feb. 28, 2025). Long, the former Director of Public Works for the City of Llano, sued the city following his termination, alleging that his termination violated the Age Discrimination in Employment Act and the Texas Commission on Human Rights Act. Because his position was later eliminated by the city, his duties were dispersed among his former colleagues, one of which was significantly younger. He claimed that his termination was due to age discrimination and that younger, less qualified employees were treated more favorably. The trial court granted summary judgment in favor of the City of Llano, concluding that Long failed to provide sufficient evidence to support his claims of age discrimination.

The appellate court affirmed, holding that that Long failed to show that he was replaced by someone younger than he was or that similarly situated younger employees were treated more favorably than he was.

Civil Rights: Tinoco v. City of Hidalgo, No. 23-40543, 2025 WL 655079 (5th Cir. Feb. 28, 2025). City of Hidalgo police officers arrested and interrogated Tinoco following an incident at the high school where Tinoco worked as the principal in which a soccer coach was alleged to have assaulted a student. One of the teachers at the school told police that Tinoco had instructed him to change his statement to police regarding the incident. Tinoco was arrested for witness tampering and interrogated. The criminal charges against Tinoco were dropped, and Tinoco sued under 42 U.S.C. § 1983, claiming the city violated his constitutional rights by falsely arresting him. The trial court dismissed Tinoco’s claim.

The appellate court affirmed, holding that the arrest warrant and probable cause affidavit, which recounted the teacher’s statement to police that Tinoco instructed him to change his statement, were sufficient to show that police had not abused their discretion by arresting Tinoco.

Recent Texas Cases of Interest to Cities

Note: Included cases are from February 1, 2025, through February 28, 2025.

Tort Claims Act: City of Denton v. Rodriguez-Rivera, No. 02-24-00393-CV, 2025 WL 421227 (Tex. App.—Fort Worth Feb. 6, 2025). A driver brought action against the city for negligence and negligence per se, seeking compensatory damages for personal injuries he sustained when a city employee backed a bulldozer into his pickup truck while he was waiting to dump a container of trash at the city’s landfill as part of his trash rental container business. The trial court denied the city’s plea to jurisdiction based on governmental immunity under the Tort Claims Act.

On appeal, the city argued that because Rodriguez-Rivera was engaged in the recreational activity of “off-road automobile driving” at the time of the collision, the city maintained its immunity due to his failure to meet the heightened evidentiary threshold of “gross negligence” established by the Texas Recreational Use Statute. The appellate court affirmed, holding that (1) the city’s governmental immunity was waived, and (2) as a matter of first impression, commercial activity was excluded from the Recreational Use Act’s limitations on governmental liability for “pleasure driving.”

Inverse Condemnation: City of Highland Vill. v. Deines, No. 02-24-00431-CV, 2025 WL 494695 (Tex. App.—Fort Worth Feb. 13, 2025) (mem. op.). This case arises from flood damage to the home of Deines and Palumbo (Homeowners).  During the month prior to the flood, the city had used skid-steer-type vehicles to place rocks near the Homeowners’ property. On the day of the flood, the city delivered skid-steer-type equipment to the area adjacent to the Homeowners’ home so that the city could begin its Sewer Line Stabilization Project. That evening, over three inches of rain fell, and the Homeowners’ home flooded.

The Homeowners sued the city, alleging a claim under the Texas Tort Claims Act and, in the alternative, a claim for inverse condemnation. The city answered, asserting a general denial and the affirmative defense of governmental immunity, and later filed a plea to the jurisdiction, arguing (1) that its immunity was not waived because it did not use motor-driven equipment and (2) that the Homeowners had failed to properly plead an inverse-condemnation claim. After additional filings by the parties and a hearing, the trial court denied the plea.

The appellate court reversed the trial court’s denial of the city’s plea to the jurisdiction and remanded the case to the trial court to provide the Homeowners with an opportunity to replead.

Short-Term Rentals: City of Dallas v. Dallas Short-Term Rental All., No. 05-23-01309-CV, 2025 WL 428514 (Tex. App. Feb. 7, 2025) (mem. op.). In 2023, the City of Dallas adopted two ordinances regulating short-term rentals. The first ordinance banned short-term rentals in single-family residential zones, and the second established a permit process for other areas. Shortly thereafter, the Dallas Short-Term Rental Alliance (DSTRA) and several individuals sued the city, claiming the ordinances were unconstitutional and seeking injunctive relief. The trial court granted DSTRA’s request for a temporary injunction, preventing the city from enforcing the ordinances, and the city appealed. In affirming the lower court, the court of appeals held that DSTRA met their burden to establish a probable right of recovery under their due-course-of-law argument by showing: (1) they possessed well-established rights to lease their property; (2) the city would deny them those rights by enforcing the two ordinances within six months; and (3) DSTRA would suffer probable, imminent, and irreparable injury without injunctive relief.

Employment: Donna Indep. Sch. Dist. v. Quintanilla, No. 13-23-00395-CV, 2025 WL 504276 (Tex. App.—Corpus Christi–Edinburg Feb. 14, 2025) (mem. op.). Quintanilla, a former child nutrition director for the Donna Independent School District, filed a whistleblower suit against the district after her employment contract was not renewed. Quintanilla alleged that the school district chose not to renew her contract in retaliation for reporting her suspicions that the district’s chief financial officer had improperly transferred child nutrition funds for other uses. The school district filed a motion for summary judgement claiming governmental immunity. The trial court denied the motion and the school district appealed.

The appellate court reversed and remanded, holding that Quintanilla had failed to produce evidence showing a causal link between her report and the nonrenewal of her contract.

Tort Claims Act: City of Houston v. Gremillion, No. 14-24-00130-CV, 2025 WL 380524 (Tex. App.—Houston [14th Dist.] Feb. 4, 2025) (mem. op.).Brandon Gremillion sued the City of Houston for negligence after a collision with a police vehicle driven by Officer Alberte Chrisphonte-Lovince. The officer was responding to an emergency call with lights and siren activated. She entered an intersection against a red light and struck Gremillion’s vehicle, which was proceeding on a green light. The investigating officer concluded that the officer failed to exercise due care in clearing the intersection. The city moved for summary judgment in the case, arguing that it retained governmental immunity, because Officer Chrisphonte-Lovince had official immunity. The trial court denied the motion, and the city appealed. A government employee like Officer Chrisphonte-Lovince may be immune from a lawsuit that arises from the performance of their discretionary duties in good faith, provided the employee was acting within the scope of their authority. The test for official immunity is not whether the officer acted negligently; rather, it is whether no reasonable officer in the same or similar circumstances could have believed that Officer Chrisphonte-Lovince’s actions were justified. In this case, the appellate court held that Officer Chisphonte-Lovince’s actions in response to the emergency call conclusively established her immunity from liability. Because Officer Chisphonte-Lovince retained immunity, the city was immune from suit; therefore, the court in this case reversed the trial court and dismissed Brandon Gremillion’s claims against the city.

Tort Claims Act: City of Houston v. State Farm Mut. Auto. Ins. Co., No. 14-24-00133-CV, 2025 WL 554191 (Tex. App.—Houston [14th Dist.] Feb. 20, 2025). State Farm sued the City of Houston for property damage after an automobile collision involving a Houston police officer. The original petition alleged that a city employee, driving negligently, caused the collision while acting within the scope of employment. The city moved to dismiss the claims, arguing that State Farm’s petition failed to allege facts demonstrating a waiver of governmental immunity. The trial court denied the motion, and the city appealed. In this case, State Farm’s petition contained only conclusory allegations that the city’s employee was negligent without stating specific facts about the collision, the officer’s actions, or any circumstances negating possible immunity defenses. State Farm filed an amended petition; however, the amended petition was untimely and could not be considered. Ultimately, the court held that a mere assertion of negligence is insufficient to establish a waiver of immunity under the TTCA. Because State Farm had an opportunity to amend its petition but failed to cure the deficiencies, the court dismissed its claims with prejudice.

Tort Claims Act: City of Houston v. Mohamed, No. 14-24-00169-CV, 2025 WL 556452 (Tex. App.—Houston [14th Dist.] Feb. 20, 2025) (mem. op.).Kebret Mohamed, a taxi driver, sued the City of Houston for injuries sustained when he jumped from a wooden deck to escape a fire in the taxi drivers’ lounge area at George Bush Intercontinental Airport. He alleged negligence, negligent hiring, and premises liability, claiming the city failed to provide adequate fire safety measures and a safe means of egress. The city moved to dismiss Mohamed’s claims, asserting that it retained governmental immunity. The trial court dismissed the city’s motion, and the city appealed. A city is generally immune from suit and liability unless the city’s governmental immunity is clearly waived. The Texas Tort Claims Act (TTCA) contains waivers of governmental immunity applicable in certain situations. With regard to claims involving injuries caused by a condition or use of tangible property or real property, governmental immunity may be waived for claims in circumstances where the city would be liable for the injuries, if the city were a private person. The TTCA also contains exceptions to the waiver for certain discretionary functions as well as an exception for police or fire protection. Because Mr. Mohamed’s claims either failed to establish a valid waiver of city immunity or exceptions to the waiver applied, the appellate court reversed the trial court’s judgment and rendered judgment dismissing Mr. Mohamed’s claims.

Recent Texas Attorney General Opinions of Interest to Cities

Note: Included opinions are from February 1, 2025, through February 28, 2025.

KP-483 (Attorney’s Fees in Tax Delinquency Case): Section 33.07 of the Property Tax Code authorizes a taxing unit to impose a penalty to defray the costs of delinquent tax collection. The section 33.07 penalty is solely for the purpose of providing compensation to a contract attorney.

Section 33.48 of the Property Tax Code provides that in a suit to collect a delinquent tax a taxing unit is entitled to recover attorney’s fees. However, a taxing unit may not both recover attorney’s fees under section 33.48 and impose the section 33.07 collection penalty.

A court would likely conclude a taxing unit that contracts with a private attorney to enforce the collection of delinquent taxes may—in lieu of imposing the section 33.07 penalty—initiate a delinquent tax suit after February 1 but before July 1 of the year in which the taxes become delinquent and recover section 33.48 attorney’s fees.