Newsletter Archives 2022

Notice and Announcements

SAVE THE DATE – 2022 TCAA Summer Conference!

The 2022 Summer Conference will take place on June 15-17, 2022, at the San Luis Resort Spa & Conference Center, in Galveston. Conference registration and hotel block reservations will open in March. Please watch your inbox for more details in the coming weeks!

CARE Unit

The City Attorneys Responding in an Emergency (CARE) Unit consists of volunteer city attorneys from around the state who are willing to assist local city attorneys in responding to a catastrophic event by providing critical legal assistance to facilitate recovery. If you are interested in serving (or continuing to serve) as a member of this invaluable team, the TCAA Board asks that you complete this very brief survey by March 1. Contact Evelyn Njuguna at [email protected] or 512-231-7400 with questions.

Government Law Specialization Petition

The Government Law Section of the State Bar of Texas (Section) has created a petition requesting that the Texas Board of Legal Specialization establish local government law as a recognized legal specialty area.  In order to submit a qualified petition, the Section needs to gather a certain number of signatures.  The Section is encouraging local government lawyers to review the petition, and to sign and return the signature form if they support the specialization.  Signed forms should be send to [email protected].  Once the Section has gathered all of the required signatures it will submit the petition to the Texas Board of Legal Specialization for consideration.  For more information and updates, please visit: www.txgovernmentlaw.org

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

2021 TCAA Summer and Fall Conferences

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

Supreme Court Midterm for Local Governments 2021-22

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

The State and Local Legal Center (SLLC) files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. *Indicates a case where the SLLC has filed or will file an amicus brief.

The Supreme Court’s docket is full for the 2021-22 term. The SLLC Supreme Court Preview for State Governments summarizes a number of important cases for local governments the Supreme Court agreed to hear this term as of July 2021—including a gun case, two First Amendment cases, and a case involving whether emotional distress damages are available under a number of federal anti-discrimination statutes. This article summarizes three more interesting cases for local governments to be decided this term—including two more First Amendment cases.

The issue the Supreme Court will decide in Shurtleff v. City of Boston* is whether flying a flag on a flagpole owed by a government entity is government speech. If it is, Boston may refuse to fly a Christian flag. Boston owns and manages three flagpoles in an area in front of City Hall. Boston flies the United States and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on another flagpole, and its own flag on a third flagpole. Third parties may request to fly their flag instead of the city’s flag in connection with an event taking place within the immediate area of the flagpoles. Camp Constitution asked the city to fly its Christian flag while it held an event near the flag. The city refused its request to avoid government establishment of religion.

The First Circuit held that flying a third-party flag on a city hall flag poll is government speech meaning the city didn’t have to fly the Christian flag.

According to the First Circuit, in two previous cases the Supreme Court has developed a three-part test for determining when speech is government speech. The Court looks at the history of governmental use, whether the message conveyed would be ascribed to the government, and whether the government “effectively controlled” the message because it exercised “final approval authority over their selection.”

Regarding the history of governments using flags, the First Circuit stated “that a government flies a flag as a ‘symbolic act’ and signal of a greater message to the public is indisputable.”

The First Circuit also concluded that an observer would likely attribute the message of a third-party flag on the city’s third flagpole to the city.

Finally, the First Circuit had no difficulty concluding the city controlled the flags. “Interested persons and organizations must apply to the City for a permit before they can raise a flag on this flagpole.”

In Kennedy v. Bremerton School District,* the Court will decide whether the First Amendment protects a high school football coach who, joined by students, prayed after football games.

According to Joseph Kennedy, his religious beliefs required him to pray at the end of each game. Students eventually joined him as he kneeled and prayed for about 30 seconds at the 50-yard line.

When the school district found out, the superintendent directed Kennedy not to pray with students. After widely publicizing his plan, Kennedy announced he would pray after a particular game even if students joined him. He was ultimately put on administrative leave and didn’t apply to coach the next fall.

The Ninth Circuit held that Kennedy had no First Amendment free speech right to pray because he was speaking as a “government employee” rather than as a “private citizen.” And even if he was speaking as a private citizen the Ninth Circuit held the district could prevent him from praying because of Establishment Clause concerns.

The Ninth Circuit concluded Kennedy was speaking as a public employee when he prayed because he “was one of those especially respected persons chosen to teach on the field, in the locker room, and at the stadium. He was clothed with the mantle of one who imparts knowledge and wisdom. Like others in this position, expression was Kennedy’s stock in trade. Thus, his expression on the field—a location that he only had access to because of his employment— during a time when he was generally tasked with communicating with students, was speech as a government employee.”

The Ninth Circuit also held that even if Kennedy’s speech was private, avoiding violating the Establishment Clause was an “adequate justification for treating Kennedy differently from other members of the general public.” Per the Ninth Circuit an objective observer would know “Kennedy actively sought support from the community in a manner that encouraged individuals to rush the field to join him and resulted in a conspicuous prayer circle that included students.” “Viewing this scene, an objective observer could reach no other conclusion than [the school district] endorsed Kennedy’s religious activity by not stopping the practice.”

The question in Vega v. Tekoh* is whether a police officer can be sued for money damages for failing to provide a Miranda warning.

Terrance Tekoh was tried for unlawful sexual penetration. At trial he introduced evidence that his confession was coerced. A jury found him not guilty.

Tekoh then sued the officer who questioned him, Deputy Carlos Vega, under 42 U.S.C. Section 1983 claiming Vega violated his Fifth Amendment right against self-incrimination by not advising him of his Miranda rights.

The Ninth Circuit held Tekoh could bring a Section 1983 case. According to the Ninth Circuit, following Miranda there was much debate over whether Miranda warnings were “constitutionally required.”

In Dickerson v. United States (2000), the Supreme Court held that Congress could not overrule Miranda via a federal statute that provided confessions were admissible as long as they were voluntarily made, regardless of whether the Miranda warning had been provided. Miranda, the Supreme Court reasoned, was “a constitutional decision.” According to the Ninth Circuit, the Supreme Court has subsequently “muddied” the waters since Dickerson. But since Dickerson less than five Justices have said money damages aren’t available for Miranda violations.

Conclusion

Interestingly, all three cases present issues which could arise at any local government on any day. Local governments engage in government speech constantly. Local governments, like all employers, want to stop employees from engaging in a variety of activities while at work. And every time a police officer interacts with someone, he or she must decide whether to recite Miranda. The Court will issue opinions in all of these cases by the end of June 2022.

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-February-2022

Recent Texas Cases of Interest to Cities

Note: Included cases are from January 11, 2022 through February 10, 2022.

Tort Claims Act: City of Bellaire v. Hennig, No. 01-21-00077-CV, 2022 WL 210138 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022) (mem. op.). Hennig sued the City of Bellaire, alleging that the city’s negligent use of motor-driven equipment caused sewage to back up into her house and damage her property. In the lawsuit, she alleged that the city was negligent in its utilization of a rooter that was too short to reach a blockage, in selecting an inadequate access point to clear the blockage, in failing to adequately clear the line, and in failing to sufficiently inspect the line to determine that it was cleared. She also alleged that the city was negligent in failing to train its personnel on these issues.

Hennig filed a plea to the jurisdiction alleging that its immunity from suit was not waived by the Texas Torts Claims Act (Act), and therefore, the trial court lacked subject matter jurisdiction over her suit. Specifically, the city contended that any allegations concerning the use of motor-driven equipment did not invoke the statutory waiver. It further argued that there was no evidence that the city’s operation or use of motor-driven equipment caused Hennig’s property damage.

The trial court denied the plea to the jurisdiction. The city appealed and argued that the trial court lacked subject matter jurisdiction over Hennig’s suit because governmental immunity was not waived under the Act. The appellate court agreed reversing and rendering judgment dismissing Hennig’s suit.

Substandard Structures/Municipal Court: Jaramillo v. City of Texas City, No. 01-20-00654-CV, 2022 WL 363271 (Tex. App.—Houston [1st Dist.] Feb. 8, 2022) (mem. op.). Following a physical inspection of the buildings on Jaramillo’s property, Texas City notified Jaramillo in writing that the structures were “substandard” as defined in several provisions of Texas City’s Code of Ordinances and the International Property Maintenance Code. Texas City then filed a complaint in its municipal court seeking an order requiring Jaramillo to abate the alleged substandard structures on his real property and, if he failed to comply, authorizing Texas City to demolish the structures.

Texas City set the matter for an abatement hearing on July 15, 2020. That same day, Jaramillo and Texas City signed an Agreed Order of Abatement (“Abatement Order”). Jaramillo and the Texas City prosecutor discussed the terms of the Abatement Order on the record. The municipal court judge asked about Jaramillo’s agreement to the order and he responded in the affirmative. Two weeks later, Jaramillo filed suit against Texas City alleging an unlawful taking of his property. He alleged that, prior to the abatement hearing, the Texas City prosecutor threatened him with either agreeing to an order authorizing Texas City to demolish the structures on his real property or Texas City would fine him up to $2,000 per day from January 21, 2020 (the date of the initial inspection) to July 15, 2020 (the date of the abatement hearing). According to Jaramillo, he had “no financial choice except to agree to the [Abatement] Order.” He alleged that the prosecutor’s conduct was illegal and denied him procedural due process in violation of Article 1, Sections 17 and 19 of the Texas Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.

Jaramillo requested that the trial court issue a declaratory judgment finding that Texas City’s actions were null, void, and of no effect and a writ of certiorari to the municipal court under state law. He also sought a temporary restraining order and a temporary injunction seeking to prevent Texas City from taking certain actions in connection with the structures on his real property. Appellant also requested monetary relief.

The trial court granted Jaramillo’s request for a temporary restraining order and set a temporary injunction hearing for September 2, 2020. Following the hearing, the trial court denied Jaramillo’s request for a temporary injunction. The next day, he filed his first amended petition adding claims of fraud and civil conspiracy against Texas City. He alleged “the City’s course of action is a series of concerted acts of fraud, collusion and misrepresentation by the named participants and others, designed to induce Plaintiff into the Agreed Order, the end consequence of which is the taking of his Property.” He claimed Texas City had misrepresented the code violations and corresponding fines to him and had “coerced and induced” him to sign a document that “fraudulently represented his rights in the ‘Property.’ ” He sought monetary relief, a declaration from the trial court that Texas City’s actions were null, void, and of no effect, and a writ of certiorari to the municipal court under state law.

Texas City moved to dismiss Jaramillo’s lawsuit for want of jurisdiction arguing: (1) Jaramillo could not appeal the Abatement Order, (2) his appeal was untimely and filed in the wrong court, and (3) Texas City is immune from his intentional tort claims. Jaramillo did not respond to the motion. The trial court granted Texas City’s motion to dismiss, which Jaramillo appealed. The appellate court affirmed.

Takings: Webb v. City of Fort Worth, No. 02-21-00133-CV, 2022 WL 123219 (Tex. App.—Fort Worth Jan. 13, 2022) (mem. op.). This is a constitutional-taking-and-nuisance suit involving governmental immunity as it relates to a city’s responsibility for the escape of raw sewage into a home.  Webb, a Fort Worth homeowner, sued the City of Fort Worth after his home flooded with raw sewage. He sought damages for a taking under the Texas Constitution, for common law nuisance and statutory nuisance per se, and for negligence, as well as a declaratory judgment. The city filed a plea to the jurisdiction, as well as traditional and no-evidence motions for summary judgment, all of which the trial court granted before dismissing his claims against the city with prejudice.

Webb appealed and argued that the trial court: (1) abused its discretion by refusing to file findings of fact and conclusions of law; (2) abused its discretion by failing to hold an evidentiary hearing on the city’s plea to the jurisdiction; (3) erred by granting the city’s plea to the jurisdiction and summary-judgment motions, as well as by dismissing his suit with prejudice. Because Webb was not entitled to findings and conclusions or an evidentiary hearing on the plea to the jurisdiction and because the trial court did not err by granting the city’s plea to the jurisdiction, the appellate court affirmed the trial court’s decision without reaching Webb’s two summary-judgment issues.

Tort Claims Act: Osman v. City of Fort Worth, No. 02-21-00117-CV, 2022 WL 187984 (Tex. App.—Fort Worth Jan. 20, 2022) (mem. op.). This is an interlocutory appeal from trial court orders granting two pleas to the jurisdiction in favor of the City of Fort Worth and the Dallas/Fort Worth International Airport Board (collectively the “Airport Board”). The underlying lawsuit stems from a lady who was struck by a train in a right-of-way owned by the Airport Board after allegedly crossing adjacent property owned by the Airport Board. Osman alleged that the Texas Tort Claims Act (Act) waived the Airport Board’s sovereign immunity. However, the Airport Board argued that they were not given the presuit notice required by the Act, thereby depriving the trial court of subject matter jurisdiction. The Airport Board filed pleas to the jurisdiction on this basis, but Osman moved for continuance to allow additional time for discovery. The trial court denied the continuance and granted the Airport Board’s pleas.

Osman argued that the trial court’s refusal to allow additional discovery was an abuse of discretion and that the trial court erred by granting the Airport Board’s pleas because she raised a genuine issue of material fact regarding the Airport Board’s actual, presuit notice. The appellate court found that the Osman failed to explain the nature and materiality of the yet-to-be-discovered information she sought. Furthermore, she had failed to produce evidence that raised a fact issue on each of the three required elements of presuit notice. Instead, Osman disputed the legal standard for such presuit notice. The appellate court affirmed, holding that the trial court did not abuse its discretion by denying the Osman’s continuance and did not err by granting the Airport Board’s pleas.

Civil Service: O’Neill v. City of Fort Worth, No. 02-21-00214-CV, 2022 WL 325386 (Tex. App.—Fort Worth Feb. 3, 2022) (mem. op.). This is a civil service case where the court of appeals affirmed the trial court’s ability to order a substituted hearing examiner in an appeal from an indefinite suspension.

O’Neill was a firefighter for the city and was indefinitely suspended after being involved in a physical altercation with a citizen at a TCU football scrimmage.  He appealed to a hearing examiner who found for O’Neill. An appeal resulted to the court of appeals, which remanded the issue to decide if the hearing examiner improperly considered outside evidence. On remand, the court held the hearing examiner violated the Civil Service Act (Act) by considering evidence that was not presented in the final hearing.  The trial court vacated the examiner’s decision and ordered a rehearing. When the city recognized that the same hearing examiner was set to preside over the rehearing, the city objected and filed a plea to the jurisdiction, which the hearing examiner denied. The city then filed suit (that resulted in the present appeal) under the Uniform Declaratory Judgments Act (UDJA) to hold that the same hearing examiner could not preside over the rehearing. The trial court held a trial on the merits under the UDJA claims and found the hearing examiner had exhibited bias, was no longer independent and ruled for the city. O’Neill appealed.

O’Neill argued the city’s declaratory-judgment lawsuit was barred by res judicata or collateral estoppel. The main issue presented to the trial court was whether the same hearing examiner could preside over the rehearing regarding O’Neill’s appeal of his indefinite suspension. The court noted that the Texas Supreme Court has looked to the Texas Arbitration Act (TAA) in prior opinions to fill in the gaps when the Act is silent.  Turning to the TAA concerning the issue here, it has a specific section dedicated to rehearings after an arbitration award is vacated. The Act states in multiple locations that a hearing examiner must be independent and therefore neutral. When a hearing examiner is found to have developed bias against one party, they are not independent. To allow a biased hearing examiner to preside over the rehearing merely because the Act is completely silent regarding rehearings is against the purpose of the Act. The trial court, following the Texas Supreme Court’s example for crafting remedies when the Act provides none, is permitted to look to the TAA for guidance.  As a result, the trial court’s order was affirmed.*

Tort Claims Act: City of Fort Worth v. Alvarez, No. 02-20-00408-CV, 2022 WL 405897 (Tex. App.—Fort Worth Feb. 10, 2022) (mem. op.). This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Fort Worth Court of Appeals agreed jurisdiction was not pled nor presented but remanded for an opportunity to cure the pleading.

Romero was traveling in a vehicle with her daughter when floodwaters due to rain swept the vehicle into an alleged rain-filled excavation on property owned by Whiz-Q that was purported to have improper drainage due to a defective excavation. Both occupants drowned. The family sued Whiz-Q, the city, and TxDOT. The city filed a plea to the jurisdiction claiming that its immunity was not waived because it did not own, occupy, or control “the property where this incident occurred” or the access road Romero was on. The plea was denied, and the city appealed.

Plaintiffs argued their pleadings incorporated by implication that the flood waters on the access road constituted a defective condition, but the city asserts the pleadings only mention defective excavation. The court held the pleadings must be read as written, which does not include the flood waters as a defective condition. The city next argued that it did not have a duty to make the premises safe because it did not create the dangerous condition nor agree to make safe a known, dangerous condition.  However, a premises-liability defendant may be held liable for a dangerous condition on real property if it created the condition or it “assum[ed] control over and responsibility for the premises,” even if it did not own or physically occupy the property. “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.”  While the city has exclusive control over its roadways, it entered into an agreement with TxDOT to maintain the access road. The city’s jurisdictional evidence shows that, at the time of the accident, the city did not possess—that is it did not own, occupy, or control—the property or the defective excavation on the property. Whiz-Q owns and operates its business on the property.  The court concluded that at the time of the accident, either Whiz-Q or TxDOT owned or maintained the property, not the city. The pleadings are therefore defective. However, the court noted a premise defect (as opposed to a special defect) could still be potentially raised in the pleadings under the agreement with TxDOT.  As a result, the suit was remanded to allow the Plaintiffs to replead under a premise defect theory only.*

Zoning: Farahnak v. City of Southlake Bd. of Adjustment, et al., No. 02-21-00202-CV, 2022 WL 405899 (Tex. App.—Fort Worth Feb. 10, 2022) (mem. op.). Farahnak appealed the trial court’s determination that the board of adjustment (Board) did not abuse its discretion in allowing a special exception and variance for a property in close proximity to Farahnak.  Farahnak also argued that the Board failed to expressly make any of these findings and that even if the findings had been made in Farahnak’s favor, the compatible-use finding and the setback criterion would have been supported by no evidence based on Farahnak’s assertions at the public hearing.

The evidence showed that the ordinance at issue, while mentioning governing “criteria” and necessary “find[ings]” for a special exception, did not require that the Board make express findings tracking the criteria and findings lists and did not require that any findings be included in the meeting minutes. Therefore, the appellate court found that the Board’s failure to do so did not render its ultimate decision illegal. Moreover, the only question that state law allows a reviewing court is the determination of the legality of the Board’s decision, which inquires whether the Board clearly abused its discretion. The appellate court affirmed the trial court’s order and found that there was no illegality in the Board’s determination and that it was appropriately reviewed.

Tort Claims Act: City of Killeen v. Terry, No. 03-20-00071-CV, 2022 WL 221240 (Tex. App.—Austin Jan. 26, 2022) (mem. op.). Terry, individually and as next friend to his minor child, sued the City of Killeen for injuries and damages resulting from a Killeen Police Department officer’s vehicle colliding with Terry’s vehicle. The officer was responding to a 9-1-1 call reporting a stabbing and running “Code III,” which allows the officer to run with lights and sirens when responding to a major crime like a felony or when a person’s life or safety may be an issue. The officer testified that he understood that emergency vehicles under a Code III may disregard traffic-control devices but must do so in a safe and prudent manner with due care, taking into consideration other vehicles, pedestrians, weather, traffic, and obstacles.

The officer had a red traffic light, but having activated his lights and siren approximately 850 feet before the intersection, sounded his air horn three times, and slowed from 72 miles per hour (mph) and entered the intersection in the left-most westbound lane at approximately 61 mph. The dashcam video showed that no cars were stopped in front of the officer before the intersection. Terry, who the officer said was in the outside lane and blocked from his view by the stopped cars, had a green light and proceeded into the intersection. The officer’s vehicle slowed to 54 mph as it struck Terry’s vehicle.

Terry sued, alleging negligence and negligence per se toward him and his child and seeking to impose liability on the city through respondeat superior. Terry asserted that the city was liable under the Texas Tort Claims Act (Act) because Appellant’s employee, acting in the course and scope of his employment, injured Appellee and his child through the operation of a motor vehicle; Terry alleged that the officer would have been responsible and the city would be liable if it were a private person. Terry added allegations that the officer acted with conscious indifference or reckless disregard for the safety of others and a claim for gross negligence after the city filed a plea to the jurisdiction. The city in its plea to the jurisdiction asserted that its governmental immunity was preserved because the officer was responding to an emergency and was operating an emergency vehicle in response to a 9-1-1 call, was not reckless, and complied with all applicable statutes and ordinances. The trial court denied the plea, and the appellate court affirmed the trial court’s order.

Tort Claims Act: City of Austin v. Quinlan, No. 03-21-00067-CV, 2022 WL 261569 (Tex. App.—Austin Jan. 28, 2022) (mem. op.). This is an interlocutory appeal filed by the City of Austin, arguing that Quinlan’s claims against it were barred by governmental immunity. The district court denied the city’s plea without specifying the basis for the denial.

Quinlan filed suit when she injured herself after falling “more than a foot” from the patio on the outer edge of the premises while she was exiting the restaurant. The restaurant, Guero’s, “was in possession and control of the premises and held a permit to occupy the City’s Right of Way in order to operate a ‘sidewalk café’” on a patio area outside the restaurant. To obtain this permit, Guero’s agreed to pay the city an application fee of $100 and an annual fee of $200. Additionally, Guero’s was required to maintain the premises in accordance with the terms of a Maintenance Agreement (Agreement) with the city.

Quinlan alleges that the city was liable for her injuries to the extent that the patio and/or surrounding area is owned and/or under the control of the city. She further argued that according to the terms of the Agreement, the city assumed contractual responsibility to both monitor and enforce violations by Guero’s with regards to safety of the patio. She also claimed that the city further became obligated to ensure that the patio and the street was level so as not to pose a dangerous condition to her and other patrons. Moreover, Quinlan alleged that the city and Guero’s were jointly in control of the subject premises and that both Guero’s and the city had a duty to exercise the degree of care that a reasonably careful person would use to avoid harm to others under circumstances similar to those described in the petition. Quinlan further alleged that the city, by virtue of the Agreement with Guero’s, was obligated to elevate the street and/or provide appropriate modifications to the patio and surrounding area to make such premises safe for patrons. As an additional basis for liability, Quinlan alleged that the Agreement between the city and Guero’s constituted a joint enterprise, thereby making the city vicariously liable for Guero’s conduct.

The city filed a plea to the jurisdiction, arguing that Quinlan’s claims against it were barred by governmental immunity. The district court denied the city’s plea without specifying the basis for the denial. The appellate court affirmed in part and reversed in part the district court’s order and rendered judgment dismissing some but not all of Quinlan’s claims.

Contracts: City of San Antonio By and Through the San Antonio Water Sys. v. Campbellton Rd., Ltd., No. 04-20-00569-CV, 2022 WL 219005 (Tex. App.—San Antonio Jan. 26, 2022).  This is an interlocutory appeal from the trial court’s order denying the plea to the jurisdiction and motion to dismiss for lack of jurisdiction filed by the City of San Antonio by and through the San Antonio Water System (SAWS) in a breach of contract case.

In the contract at issue, Campbellton, a private land developer, sought sewer service from SAWS to accommodate its plan to develop two residential subdivisions. The ten-year contract contained provisions regarding Campbellton’s installation and conveyance of certain on-site and off-site facilities to SAWS for the purpose of increasing the capacity of the available sewer service so that Campbellton’s two developments could obtain sewer services. The contract was subject to Campbellton satisfying conditions enumerated in the contract. Campbellton alleged that SAWS had attempted to avoid liability under the contract “by passing a ‘rule’” that stated any wastewater commitments for which SAWS had previously issued but did not specify an “end date” or “termination date” would automatically terminate fifteen years “from the date made.” Campbellton sought specific performance, requesting the trial court order SAWS to “specifically perform its obligations and promises under the contract and supply it with the wastewater capacity which it contracted to provide.” Campbellton further sought monetary damages pursuant to section 271.153 of the Texas Local Government Code. In addition to its breach of contract claim, Campbellton sought a declaratory judgment that “the purported ‘rule’ passed by SAWS which attempts to terminate the contractual obligations of SAWS to Campbellton does not apply to the agreement between Campbellton and SAWS.” Campbellton further sought costs and attorney’s fees.

The appellate court reversed the trial court’s order, finding that SAWS’s immunity under Chapter 271 of the Local Government Code had not been waived as the contract was not an agreement to provide services to SAWS.  Additionally, the court found no waiver of immunity under Chapter 245 of the Local Government Code as it was unclear whether Campbellton had paid all the impact fees required under the contract within ten years from the date of the contract so as to acquire vested rights. The court further remanded to the trial court to determine attorney’s fees and costs.

Zoning: MVP Raider Park Garage, LLC v. Zoning Bd. of Adjustment of City of Lubbock, No. 07-20-00261-CV, 2022 WL 119131 (Tex. App.—Amarillo Jan. 12, 2022) (mem. op.). The plaintiff sued the city’s board of adjustment for denying a conditionally approved signage variance in 2019 when the variance was up for review. The board had granted the variance in 2012 with the condition that it would be up for review after seven years. The trial court granted the board’s motion for summary judgment and the plaintiff appealed.

The appellate court affirmed the trial court and found: (1) the board did not abuse its discretion when it issued the variance in 2012 subject to the condition that it be reviewed every seven years and doing so didn’t make the variance a temporary variance; (2) the plaintiff’s issue with the review provisions in the variance should have been brought in 2012 after the variance was granted with the conditions; and (3) the testimony at the 2019 hearing was sufficient for the board to revoke the variance.

Disability Discrimination: Texas Tech Univ. Health Sciences Ctr. v. Niehay, No. 08-19-00201-CV, 2022 WL 289505 (Tex. App.—El Paso Jan. 31, 2022). This is an interlocutory appeal challenging the trial court’s denial of a combined plea to the jurisdiction and motion for summary judgment, seeking dismissal of a lawsuit by Dr. Niehay in which she alleged that she was wrongfully terminated from an emergency medicine residency program because of a perceived impairment, which she identified as morbid obesity.

The appellate court affirmed the trial court’s ruling, finding that in a “regarded as” claim, morbid obesity can be considered an impairment under the Texas Commission on Human Rights Act (TCHRA) without evidence of an underlying physiological cause. However, the court limited its holding to morbidly obese workers who can perform their normal job duties without accommodation but are wrongly perceived as being impaired. Dr. Niehay was therefore only required to establish that Texas Tech viewed her as being impaired from her morbid obesity—regardless of the cause—and that Texas Tech terminated her as a result. The court found direct evidence of Texas Tech’s discriminatory intent, and concluded that Dr. Niehay met her burden of raising a question of fact on the issue of whether Texas Tech violated the TCHRA in its termination decision.

Civil Service: City of Beaumont v. Mathews, No. 09-20-00053-CV, 2022 WL 318586 (Tex. App.—Beaumont Feb. 3, 2022) (mem. op.). This is a civil service/collective bargaining/arbitrator appeal where the Beaumont Court of Appeals reversed the trial court’s order and reinstated the arbitrator’s award.

Firefighter Mathews was discharged from the City of Beaumont Fire Department after a formal investigation into a rear-end collision involving Mathews. Driver Freeman apparently rear-ended the vehicle driven by Mathews, causing Mathews to exit his vehicle and strike Freeman one or more times. The incident occurred while Mathews was off-duty, but the department’s rules and regulations apply certain standards of conduct regardless of duty status. The arbitrator admitted a statement from Freeman asserting such, which was corroborated by other evidence. Mathews appealed the termination to an arbitrator, who ultimately ruled in favor of the city, confirming Mathews’s termination. Mathews appealed to the district court, which reversed the arbitrator’s award, holding the arbitrator lacked jurisdiction and exceeded his jurisdiction. The city appealed.

Mathews argued the notice of dismissal Chief Huff gave him failed to advise him he had the right under the Civil Service Act (Act) to appeal before either the civil service commission (Commission) or a neutral arbitrator. The question then is whether the lack of that information is jurisdictional when the record shows the firefighter was aware of the options that were available to him under the Act. While Chief Huff’s notice does not contain clear and unambiguous language regarding the options it did notify Mathews that he should look to the collective bargaining agreement to decide how to proceed. 

The record conclusively proves that Mathews decided after seeking advice from his union that it was in his best interest to demand his appeal be heard by a neutral arbitrator rather than going before a Commission. As a result, the arbitrator’s jurisdiction was properly triggered. Next, Mathews argued the arbitrator improperly considered evidence submitted through the pretrial motion procedure instead of exclusively at the evidentiary hearing. The district court held the arbitrator could not consider pretrial evidence or motions. However, the Act allows the parties to file pretrial motions and expressly states it is not a violation of the Act as long as copies of the filings are served on the opposing party. Thus, the city did nothing wrong by filing a pretrial motion since the certificate of service states the city served the motion on Mathews’s legal representative and Mathews never raised a lack of service. In turn, the arbitrator did not violate the Act by conducting a hearing on the city’s motion. Next, the court held that the record does not demonstrate the arbitrator considered evidence that was not admitted during the evidentiary hearing. As factfinders, neutral arbitrators are the sole judges of the admissibility of the evidence and the weight and credibility to be given the evidence admitted during a final hearing.

Comparing the arbitrator’s findings of fact and conclusions with the evidence presented during the hearing, the court determined the arbitrator relied upon the evidence admitted at the final hearing. The district court conducted a factual and legal sufficiency review of the evidence, but that is not authorized by the Act. District court’s appellate review of arbitrator decisions are restricted to jurisdictional grounds and claims the award was procured by fraud, collusion, or through the use of other unlawful means. As a matter of law, the record presented does not allow the district court to reverse the arbitrator’s decision. The district court’s order and final judgment deprived the city of the statutory benefit of an efficient and speedy resolution through the Act. As a result, the district court’s order was reversed and the arbitrator’s decision was reinstated.*

Employment Discrimination: San Benito Consol. ISD v. Leal, No. 13-20-00569-CV, 2022 WL 243725 (Tex. App.—Corpus Christi Jan. 27, 2022) (mem. op.). Ms. Leal was working as a middle school assistant principal in San Benito Consolidated ISD (the “District”) until she was transferred to an instructional facility position at an elementary school. On May 9, 2017, Leal filed a formal charge of discrimination with both the Texas Workforce Commission (TWC) and United States Equal Employment Opportunity Commission (EEOC) and ultimately filed suit against the District on January 30, 2018, alleging, among other things, various forms of discrimination and retaliation under the labor code and violations under the Texas Constitution. The District filed a plea to the jurisdiction, which was denied by the trial court, and the District appealed contending that that Leal failed to exhaust her administrative remedies under the Texas Commission on Human Rights Act (TCHRA) and that she failed to make viable constitutional claims.

The TCHRA prohibits employers from discriminating or retaliating against protected employees who engage in protected activities. An employee engages in a protected activity by, among other things, opposing a discriminatory practice, making a charge of discrimination with the EEOC or TWC, or participating in an investigation by the EEOC or TWC. To exhaust administrative remedies, a person must, among other requirements, file a charge of discrimination with the TWC not later than the 180th day after the date the alleged unlawful employment practice occurred. Each discrete discriminatory act starts a new 180-day clock for filing charges. There is an exception to the 180-day deadline, known as the “continuing violation doctrine,” which generally applies to unlawful employment practices that cannot be said to occur on any particular day. Leal failed to establish a continuing violation, so most of her discrimination claims were dismissed as untimely. With regard to her constitutional claims, when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. To make a facially valid claim that her right to free speech was violated, Ms. Leal needed to plead and allege facts which show that: (1) she spoke out publicly on a matter of public concern; (3) her interest in speaking on such matters outweighed the District’s interest as an employer; (3) she suffered an adverse employment decision; (4) her speech motivated the adverse employment decision. Because she never spoke out publicly, the court concluded that she failed to state a facially valid claim of free speech retaliation. Finally, Ms. Leal alleged the District violated her constitutional rights to due process when they failed to promote her, but because she had no vested property interest in a work promotion—only a mere expectation—the District had not deprived her of property without due process of law. Ultimately the court affirmed the trial court’s decision in part, reversed it in part and remanded the case for further proceedings.

Governmental Immunity: Board of Adjustments for City of San Antonio v. Lopez, No. 13-20-00199-CV, 2022 WL 242749 (Tex. App.—Corpus Christi Jan. 27, 2022) (mem. op.).  The Lopezes own four parcels of real property where they began operating a cement manufacturing facility in 1995. In 1996, the city annexed the property and adopted a new zoning ordinance, and the Lopezes were granted non-conforming use rights allowing them to continue to operate their cement business, which the new zoning rules which would otherwise have prohibited.

Between January and March 2018, the city issued the Lopezes over two hundred citations for various violations of the city’s code, and on June 19, 2018, the city revoked the Lopezes’ non-conforming use permit and certificate of occupancy. As a result, the city ordered the Lopezes to cease all business operations on the property. The Lopezes reapplied for the same permits, but the city denied their application. Ultimately, the Lopezes appealed the city’s administrative decision to revoke their non-conforming use privileges to the city’s Board of Adjustments (“BOA”) which ruled in favor of the city’s decision to terminate the Lopezes’ rights, and the Lopezes appealed the BOA’s decision to trial court, including additional takings claims and a request for an injunction against the city.

The city responded with a plea to the jurisdiction, which the trial court denied. The city appealed the trial court’s judgment, arguing on one hand that the trial court did not have jurisdiction, because the Lopezes failed to exhaust their administrative remedies by not pursuing a rezone of their property. Challenging an action of a BOA requires petitioning a trial court for a writ of certiorari in a specified amount of time and contains no rezoning requirements; therefore, the appellate court dismissed the city’s first point of appeal.

The city also argued that the civil trial court had no authority to enjoin enforcement of criminal statutes by the city’s municipal court. A civil court has jurisdiction to declare a criminal statute constitutionally invalid and enjoin its enforcement only when: (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court’s equity powers and irreparable injury to property or personal rights is threatened; or (2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights. Because evidence showed that the city was actively preventing the Lopezes from remedying the alleged violations they were simultaneously being cited for, the court concluded that the Lopezes’ petition adequately challenged the constitutionality of the city’s application of its ordinances and thereby met the first requirement. The Lopezes also presented evidence supporting the allegations that the city’s enforcement threatened an irreparable injury to their vested property rights thereby meeting the second requirement as well. The appellate court held the Lopezes had properly invoked the trial court’s jurisdiction and affirmed the trial court’s judgment dismissing the city’s plea to the jurisdiction and enjoining enforcement of the citations against the Lopezes.

Tort Claims Act: City of Houston v. Green, No. 14-20-00190-CV, 2022 WL 97334 (Tex. App.—Houston [14th Dist.] Jan. 11, 2022)(mem. op.). Officer Samuel Omesa is a police officer for the City of Houston, and on March 18, 2017, while responding to a call for service, Omesa’s vehicle collided with Crystal Green’s vehicle. Green filed suit for negligence. The city filed a motion for summary judgment, which was denied by the trial court, and the city appealed arguing that (1) the city retained immunity under the emergency exception of the Texas Torts Claims Act (“TTCA”) and (2) Omesa was shielded by official immunity.

Generally, a city is immune from tort liability. The TTCA provides a limited waiver of immunity for tort suits against cities for torts committed by their employees who (1) are acting within their scope of employment arising from the operation or use of motor-driven vehicles (2) if the employee would be personally liable to the claimant according to Texas law. If the employee is protected from liability by official immunity, then the employee is not personally liable to the claimant, and the governmental unit retains its sovereign immunity. Additionally, under the “emergency exception,” to the TTCA, a city remains immune from tort liability for a claim arising from the action of an employee who is responding to an emergency call or reacting to an emergency situation if the action is (1) in compliance with the laws and ordinances applicable to emergency action or (2) in the absence of such a law or ordinance, the action is not taken with conscious indifference or reckless disregard for the safety of others.

In this case, the court concluded that Green raised a fact issue as to whether Omesa’s conduct was reckless because the evidence supported an inference that Omesa entered the intersection without stopping and without his sirens on, despite knowing that he had a red light, it was dark, that his view of the traffic was partially obstructed, and that a collision with another vehicle that could cause serious injury was possible. Therefore, the court overruled the city’s first issue. Additionally, the city cannot be vicariously liable for Omesa’s acts if he has immunity from liability.  Under the official-immunity defense, a government employee may be immune from a lawsuit that arises from the performance of the employee’s discretionary duties performed in good faith, provided the employee was acting within the scope of the employee’s authority. Good faith depends on how a reasonably prudent officer could have assessed both the need to which an officer responds and the risks of the officer’s course of action, based on the officer’s perception of the facts at the time of the event. Because the evidence did not reflect that Omesa considered alternative actions and because the city’s evidence of good faith assumes the truth of disputed facts, the court conclude that the city did not conclusively establish that Omesa acted in good faith. Thus, the trial court did not err by denying the city’s motion for summary judgment, and the appellate court affirmed the lower court’s order.

Texas Tort Claims Act: Guzman v. City of Bellville, No. 14-19-00808-CV, 2022 WL 248132 (Tex. App.—Houston [14th Dist.] Jan. 27, 2022). Rodolfo Guzman was riding his bicycle with members of his cycling club when a storm sewer grate dislodged Guzman from his bicycle, causing him to hit the ground and sustain personal injuries. In October 2018, Guzman filed suit against only the Texas Department of Transportation (“TxDOT”), and on November 14, 2018, Guzman amended his petition to add defendants Austin County and the City of Bellville (the “city”) as defendants as well as the city’s Public Works Director, Mr. Munsch. The city and Munsch filed a plea to the jurisdiction and moved for (1) dismissal of all claims against Munsch based on his immunity from suit and (2) summary judgment dismissing all claims against Munsch. The trial court granted the plea and the motion for summary judgment, and Mr. Guzman appealed.

The Texas Tort Claims Act provides that the filing of a suit against a city constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the city regarding the same subject matter, and if a suit is filed under this chapter against both a city and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the city. Since Guzman added the claims against Munsch after filing suit against the city, the court affirmed the trial court’s dismissal of all personal claims against Munsch. The court went on to discuss the failures of Guzman’s appellate brief, stating that it failed to adequately brief arguments in support of his other points of appeal, and the court ultimately affirmed the trial court’s judgment dismissing the case.

Texas Tort Claims Act: Hulick v. City of Houston, No. 14-20-00424-CV, 2022 WL 288096 (Tex. App.—Houston [14th Dist.] Feb. 1, 2022) (mem. op.). Nicholas Hulick sued the City for negligence, alleging that Officer De La Guardia, a Houston police officer, struck his motorcycle when the officer attempted to make a left-hand turn, causing Hulick serious injuries. The city filed a plea to the jurisdiction, arguing that the officer retained his official immunity, which the trial court granted. Mr. Hulick appealed.

A city cannot be vicariously liable for an employee’s acts unless its governmental immunity has been waived. The Texas Tort Claims Act (“TTCA”) provides a waiver of governmental immunity for property damage and personal injury proximately caused by the wrongful act or omission or the negligence of an city employee acting within their scope of employment if (1) the damages arise from the operation or use of a motor-driven vehicle and (2) the employee would be personally liable to the claimant according to Texas law. The dispute in this case was whether the officer “would be personally liable to the claimant under Texas law.”

The City argued that Officer De La Guardia would not be liable because he is protected by official immunity. A city employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; and (3) provided the employee acts in good faith. An action is discretionary if it involves personal deliberation, decision, and judgment; on the other hand, an action that requires obedience to orders or the performance of a duty as to which the employee has no choice is “ministerial.” In determining whether an act is discretionary, the inquiry focuses on whether an employee was performing a discretionary function. A police officer’s operation of a motor vehicle while responding to an emergency is a discretionary function; whereas, operating the vehicle on official, non-emergency business is ministerial. In this case, there was no evidence of an emergency or any urgent circumstance, and the court determined that Officer De La Guardia was performing a ministerial function to which immunity does not attach. Consequently, the court reversed the trial court’s order dismissing this case and remanded it back to the trial court for further proceedings.

Civil Service: City of Houston v. Cortez, No. 14-20-00565-CV, 2022 WL 364041 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022). The City of Houston’s Fire Chief terminated firefighter Pete Cortez after Cortez failed a drug test. Cortez appealed to the Firefighters’ and Police Officers’ Civil Service Commission for the City of Houston (“the Commission”), and the Commission upheld the termination. Cortez then appealed the Commission’s ruling to district court, which: (1) granted a motion for summary judgment filed by Cortez; (2) denied the city’s and the Commission’s motions for summary judgment; (3) reversed the Commission’s decision; and (4) reinstated Mr. Cortez. The city and the Commission appealed.

The dispositive issue before the appellate court was whether the Commission upheld an arbitrary act by the city which “tainted” the Commission’s decision “by illegality.” An arbitrary act is one that is taken capriciously or at pleasure, and not according to reason or principle. Under the city’s civil service executive order, Cortez had a right to retest his hair sample with an independent lab after the positive drug test was returned, and the city had the obligation to inform Cortez of this retest right. The city’s effective choice to observe some applicable civil service rules but not others falls squarely within the common understanding of the term “arbitrary,” and the court held that the city’s failure to fully perform all conditions precedent to removal was either clear abuse by the city or constituted an arbitrary or capricious act. Ultimately, the city’s and Commission’s decision to terminate Cortez were “tainted by illegality,” and the appellate court affirmed the trial court’s reversal of the termination.

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

Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from January 11, 2022 through February 10, 2022.

KP-0399 (Signs): A county does not have the authority to place a sign in a state highway right-of-way without approval of the Texas Department of Transportation or an agreement with the Texas Transportation Commission.