Monthly Newsletter

Notice and Announcements

2026 TCAA Fall Conference in San Antonio

The 2026 Texas City Attorneys Association TCAA Fall Conference will be held in conjunction with the TML Annual Conference and Exhibition on November 12, at the Henry B. González Convention Center in San Antonio.

Topics include:   

• Hot Mic: Balancing the First Amendment and Decorum in Public Meetings
• Data Centers
• Ten More Considerations for Municipal Construction Contracts
• Vexatious Requestors
• What the Open Records Division Actually Looks For: An Insider’s Guide to PIA Briefs
• Employment Litigation & Risk Management for Municipalities

NEW! TCAA Fall Conference Sponsorship Opportunity

TCAA is pleased to announce a NEW fall conference sponsorship opportunity! During the 2026 TCAA Fall Conference, two $5000 “Soda” sponsorship opportunities are available.

Sponsorship includes prime advertising at the TCAA Fall event, attended by 300+ TCAA members and TML attendees alike.  

Please visit the TCAA sponsorship page or contact TCAA at tcaa@tml.org or 512-231-7400.

Deadline to commit to this opportunity is September 15.

TCAA Seeking Members for Planning Committee

TCAA is seeking member applicants who are interested in serving on the Planning Committee. Application forms are available here and under the “About TCAA” tab on the TCAA website at https://texascityattorneys.org.

Planning Committee members serve for one year and assist in the planning of the following events: Riley Fletcher Basic Law Seminar (held every other year in February), Summer Conference (June), and Fall Conference (October/November).

Applications are due by October 1.

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

2026 Riley Fletcher Seminar, 2026 Summer Conference (coming July 23), 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 TCAA@tml.org. 

Compiled Case Summary List Now Available

Access to compiled city-related cases from 2017-present can be found here.

Articles

If you would like to have an article considered for publication in the TCAA newsletter, please send your request to tcaa@tml.org.

Supreme Court Decides Geofence Warrant Case But Punts on Reasonableness of Geofence Warrants

Today, in Chatrie v. United States, the Supreme Court heldthat law enforcement conducts a search under the Fourth Amendment when it reviews location data a user provided to their cell phone company.  The Court rejected the government’s arguments that law enforcement’s review of the data was not a search because: A) it only reviewed a short time-period of the location data (2 hours); and /or B) the location data is voluntarily shared with the cellphone providers (i.e., the third party doctrine).  The Court remanded to the lower court to determine if the geofence warrant was reasonable under the Fourth Amendment.

This case concerns a geofence warrant sent to Google that enabled police to review cell phone location history for various users pursuant to the warrant.  While Google’s location history can be turned off, Google repeatedly prompts users to enable it, and it even advises users that certain aspects of their devices will not “work correctly” unless the user enables location history. Once a user enables location history, it runs constantly in the background and can track an individual’s location to within twenty meters.

On May 20, 2019, an armed suspect robbed a Federal Credit Union in Midlothian, Virginia, taking $195,000 from the vault. The initial investigation into the robbery did not lead to any suspects.  Then, a detective applied for a geofence warrant from the Virginia circuit court. 

At the time, Google utilized a 3-step process on how to handle law enforcement geofence warrants.  The warrant in this case drew a geofence with a 150-meter radius covering the bank. It then laid out the three-step process by which law enforcement would obtain location information from Google. At Step One, the warrant sought from Google anonymized location history information for all devices that appeared within the geofence from thirty minutes before to thirty minutes after the bank robbery. Then, at Step Two, law enforcement would “attempt[ ] to narrow down that list” by reviewing time stamped location coordinates and comparing that to information known about the crime and then providing the narrowed list to Google. Google would then disclose anonymized location data for all those devices from one hour before to one hour after the robbery, but this information was unbounded by the geofence. Finally, at Step Three, law enforcement would again “attempt to narrow down the list by comparing this additional information regarding travel and time against the known time and location information that is specific to this crime.”  Google would then provide the username and other identity information for the requested accounts.

This back-and-forth process ultimately resulted in the arrest of Chatrie who was then indicted by a grand jury.  Chatrie sought to suppress the location data from the geofence warrant, claiming the warrant violated the Fourth Amendment.  The district court denied the motion to suppress the evidence, relying on the good-faith exception to the exclusionary rule.  The Fourth Circuit upheld the denial of the motion to suppress but based on its view that Chatrie did not have a reasonable expectation of privacy in two hours’ of Location History data that he voluntarily exposed to Google.  So, there was no search under the Fourth Amendment by the government.  The Fourth Circuit heard the case en banc and divided 7-7 on whether a Fourth Amendment search occurred.  The Fourth Circuit did not rule on the reasonableness of the geofence warrant itself as it had found no search had occurred. 

The Supreme Court granted certiorari to resolve the question of whether the use of the geofence warrant constitutes a search under the Fourth Amendment.  In a 5-4 decision authored by Justice Kagan, the Court held that law enforcement conducted a search under the Fourth Amendment when they gained access to the location data. The Court reasoned “[a]n individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information—even though for only a limited time, and from a third-party tech company.”

The Court emphasized the importance of smart phones to modern society, noting 91% of Americans own a smartphone and are “likely addicted to apps and other services, many of which collect and store ‘detailed information about all aspects of a person’s life.’”  A cell phone user’s location data can provide the government with detailed insight into the most private aspects of their life.  The Court analogized this data with other private materials like emails, documents, and photographs – many of which are also stored on Google’s servers.  The challenge then is to apply the principle that the Fourth Amendment “has sought to secure the ‘privacies of life’ against the exercise of ‘arbitrary power’” in the face of new technology.  

Before getting to the reasonableness of the geofence warrant, the federal government argued there was no search here for two reasons.  First, because the duration of the data they reviewed was for such a limited period that it did not constitute a search.  And second, it argued the review of the data was not a search because Chatrie voluntarily turned over the location history to Google and under the third-party doctrine, he had no reasonable expectation of privacy in the data anymore.  The Court rejected both these arguments. 

The Court relied heavily on Carpenter v. United States, 585, U.S. 296 (2018), which held that police conduct a search under the Fourth Amendment by accessing cell-site location information (CSLI) records from a third party.  The Court found the “resemblances between CSLI and Location History, in their relationship to personal privacy, practically leap off the page,” except “Location History is the far more precise measure.”  And therefore, everything the Court concluded in Carpenter applies with equal force in this case.  The federal government sought to distinguish Carpenter by pointing to the duration of the data searched in each case: two hours’ worth of data in this case versus seven days in Carpenter.  In rejecting this argument, the Court indicated there is no “Fourth Amendment grace period” in terms of the government accessing location history.  That is because even a short amount of time regarding an individual’s physical movements can reveal intimate details about that person’s life including their “familial, political, professional, religious, and sexual associations.”  In other words, “[w]here the Fourth Amendment applies, it applies—regardless of ‘the quality or quantity of information’ the government obtains.” 

As for the third-party doctrine, the Court once again relied on Carpenter, noting that the Court in that case “refused to apply the third-party doctrine to CSLI, and no good reason exists to reach a different result for Location History.”  Here, the Court distinguished the cases that have relied on the third-party doctrine which involved an individual voluntarily turning information over to a bank (canceled checks and deposit slips) or telephone company (phone logs), which then turned that information over to law enforcement. In these cases, the Court concluded that the individual who had voluntarily turned over the information lacked a reasonable expectation of privacy “and so relinquished his Fourth Amendment right.” 

In Carpenter and here, the Court concluded the information at issue was “qualitatively different” both int terms of the “nature” of what each record reveals and because the cell location data is not “truly ‘shared’ as one normally understands the term.’”  On this last point, the Court reasoned this information is not “shared” in the traditional sense because it is being exposed to Google and “it is the automatic price of conventional cellphone usage—which, just as Carpenter noted, is a ‘pervasive and insistent part of daily life.’”  The Court rejected the government’s argument that location data is something a user can opt out of, highlighting the repeated prompts Google sends users to turn on the service.  At bottom, the Court provided that “[a] cell-phone user is not to be viewed as sharing private information with third parties—which then can be freely passed on to the government—just by doing the ordinary things cell-phone users do.”

Finally, having concluded the government did engage in a search under the Fourth Amendment, the Court remanded to the lower court to determine in the first instance whether the geofence warrant in this case was reasonable.  The Court called the multi-step warrant at issue in this case “uncommon” and noted it is a Court of review, not first view.

Justice Alito dissented and, among other things, argued that the third-party doctrine should govern this case.  In his dissent, he pointed out various line drawing problems in terms of where a third-party might fall between the bank line of cases versus the cell phone company line of cases including things like Amazon’s purchase history, Venmo’s transaction log, or Google’s search history.

To read the decision, click here: https://www.supremecourt.gov/opinions/25pdf/25-112_0am4.pdf

To read the LGLC amicus brief, click here: https://www.supremecourt.gov/DocketPDF/25/25-112/403417/20260401132109478_25-112%20Amicus%20Brief.pdf

Supreme Court Decides Spending Clause / RLUIPA Prisoner Case In Favor of State Officials

On Tuesday, the Supreme Court held that statutes like the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) that are enacted pursuant to Congress’ Spending Clause power can “bind only those who voluntarily and knowingly undertake obligations by agreement with the federal government.”  Because employees of a state prison in this case had not agreed to the conditions set forth in RLUIPA, (only the state had agreed to be sued in accepting funding), the prisoner in this case could not sue the prison officials for damages under RLUIPA. 

Mr. Landor is a Rastafarian and as a part of his religious beliefs, he does not cut his hair.  He was in prison in Louisiana and toward the end of his sentence, he was transferred to a new facility.  He was concerned the prison officials might try to cut his hair pursuant to the prison’s grooming policy, so he brought a copy of a binding Fifth Circuit decision directly on point, which held that RLUIPA bars prisons from cutting Rastafarian’s hair.  He handed the decision to the prison officials (and warden) who responded by throwing the decision in the trash and shaving his head.

He sued the Louisiana Department of Correction (LDOC) and the individual officers responsible under RLUIPA.  The LDOC got dropped from the suit and all that remained before the Supreme Court was the challenge under RLUIPA for money damages against the state prison officials in their private capacities.

RLUIPA was enacted pursuant to Congress’ Spending Clause authority, and it imposes various conditions on federal funds distributed to state prison systems.  One of those conditions is that state prison systems must refrain from imposing “substantial burden[s] on the religious exercise[s]” (absent some exceptional circumstances) and they must consent to suits by injured parties asserting violations of RLUIPA. 

The issue in this case was whether “consistent with the Constitution, a plaintiff may bring an RLUIPA suit against individuals, like the officers in this case, who have not formed any agreement with the federal government.”  In a 6-3 decision authored by Justice Gorsuch, the Supreme Court held that a plaintiff is barred from such a suit because Congress can only condition funds based on “voluntary and knowing consent of those who must bear them.” 

The Court indicated that contract principles inform whether consent exists.  For example, there is no consent if a contract is coerced, which the Court reminds us is a reason to find a Spending Clause condition invalid – i.e., if it is akin to a “gun to the head.”  Similarly, the Court has required clear and unambiguous language to alert a grant recipient to any condition on federal funding, which is another common law contractual principle that the Court has adopted in its Spending Clause jurisprudence. 

The requirement of knowing and voluntary consent ends the inquiry in this case because the case only involves a suit against the individual employees of the prison in their personal capacities. There are no allegations that they entered into any agreement themselves with the federal government, let alone knowingly and voluntarily consented to be sued under RLUIPA. 

This case is worth reviewing for the discussion on the Spending Clause for anyone dealing with (or litigating cases involving) conditions on grants as there is some strong language in there reaffirming the parameters of the federal government’s ability to impose conditions on federal funding.  There may also be other arguments local governments can extract from this case in terms of the limitations on private rights of action under Spending Clause legislation. 

You can review the decision here: https://www.supremecourt.gov/opinions/25pdf/23-1197_new_1p24.pdf

Supreme Court Rules for Isabella County in Pung v. Isabella County, No. 25-95 / win for local government tax foreclosure / auction sale processes nationwide.   

In a major win for local governments nationwide, today the Supreme Court ruled in a unanimous decision authored by Justice Alito that the Fifth Amendment’s Takings Clause does not require the government to use fair market value as a baseline when it sells a foreclosed property at a tax auction and returns only the surplus proceeds above the outstanding tax debt. The Court also rejected the taxpayer’s claim that the County’s forfeiture process constituted an excessive fine in violation of the Eighth Amendment.

Background: The case was brought by the estate of Timothy Pung, a homeowner in Isabella County, Michigan, who had long received a Principal Residence Exemption from property taxes on his three-bedroom residence. After Mr. Pung’s death in 2004, his son lived in the home but the property’s continuing entitlement to the exemption became the subject of dispute.  Ultimately, a delinquency of $2,242 was assessed against the property, which the estate refused to pay. The County initiated foreclosure proceedings, and the home was subsequently sold at public auction for $76,008.  The County then returned the balance-slightly less than $74,000-to the estate.  Given that the County had assessed the home for  property tax purposes at $194,000 and the residence was resold some 18 months later by the auction purchaser for $195,000, the estate sought to recover a much higher amount from the County, arguing that fair market value was the proper baseline under the Fifth Amendment’s Takings Clause “just compensation” requirement.  The estate also argued that the County’s failure to remit excess monies based on fair market valuation constituted an unconstitutional excessive fine under the Eighth Amendment.  

Lower courts: Those arguments failed at the District Court and at the Sixth Circuit, which held that when local government sells foreclosed property at a properly conducted auction, “the owner is entitled to the amount of the sale above his debt and no more,” and that the Michigan tax-foreclosure regime was not punitive and thus not “within the ambit of the Eighth Amendment.”

Supreme Court:  Justice Alito’s opinion, which vacates the Sixth Circuit and remands for further inquiry into the County’s tax sale procedures, relied both on history and tradition and on the impracticality of the Pung estate’s proposition. In terms of history, governments have seized property from delinquent taxpayers since the time of Magna Carta. “For hundreds of years, English and American law have allowed the seizure and sale of property as a tax-collection method, provided that the government return any surplus proceeds to the debtor.” Numerous  federal and state laws codified that principle, as did a spectrum of Supreme Court precedents, including the Court’s recent property tax decision in Tyler v. Hennepin County.   

Caselaw that Pung cited to the contrary was distinguishable.  For example, where the government had taken multiple pieces of a taxpayer’s property (nine cows where only seven were owed), the excess should obviously be returned to the taxpayer.  Similarly, eminent domain cases where the government was initiating the taking presented a materially different scenario from the situation where a taxpayer could avoid the process entirely by paying the taxes owed—and even in the eminent domain context, the Court has “refused to designate market value as the sole measure of just compensation.” (citation omitted). 

The estate’s failure to take action played a significant role in Justice Alito’s opinion. “[T]he Pungs had years to take these steps and avoid foreclosure. They failed to do so. In such a situation, the traditional rule, under which the taxpayer receives only the difference between the auction sale price and unpaid taxes, is ‘just.’” And that failure necessarily resulted in a lower price—as the opinion notes, tax sales, by their very nature, are incompatible with traditional marketing techniques, and imposing that burden on government would be impractical:

Among other things, tax sales are designed to collect unpaid taxes without undue delay and administrative expense. By contrast, homeowners who want to receive the best price for their property may wait to list their house until there is an upswing in the market or until the right buyer comes along. Pung’s fair-market-value theory would impose unprecedented burdens on jurisdictions that wish to collect unpaid taxes and might well make tax sales impractical. In order to obtain something like fair market value for homes on which they have foreclosed, jurisdictions would have to do what homeowners typically do when they want to sell their homes: either shoulder the burden of selling the property themselves or employ a real estate agent. In the meantime, local governments would have to do without the unpaid taxes and bear the costs and risks that go with the ownership of unoccupied homes.

Beyond that impracticality, Justice Alito wrote, a fair market value requirement might easily place the jurisdiction at having to use taxpayer dollars to compensate for tax auctions sales that did not achieve a fair market price.  Requiring governments to make up the difference between auction price and assessed or appraised value would effectively hold the government liable for market conditions beyond its control and would impose unpredictable financial burdens on local tax collection systems. The majority opinion also points out that the Pung’s interpretation of the Takings Clause (and the Eighth Amendment) would “impose restrictions that rendered these sales untenable,” and that the fact that such an interpretation would whisk this longstanding practice into the dust bin is strong evidence that his interpretation is incorrect.”

The Alito opinion made swift work of the estate’s Eighth Amendment excessive fines argument, stating that the petitioner lacked historical or precedential support and did not cite “a single decision holding that the government violates the Eighth Amendment by returning only the surplus proceeds from a tax sale.”  

One issue left unresolved was the underlying procedural adequacy of the Isabella County forfeiture and sale process.  While that question was not specifically before the Court, Justice Alito noted that both parties appeared to agree that a jurisdiction might violate the Constitution if it employed “blatantly unfair procedures, such as by conducting a sham sale or needlessly delaying a tax sale while real estate prices crashed.” But the parties disagreed on what constitutes a fair process. According to the County, governments need only follow the contours of state law, while the United States, as amicus, argued that the process must be fairly conducted  “in light of the Nation’s history and tradition of tax sales.”  That issue would not be decided in Justice Alito’s opinion, which returned the question to the Sixth Circuit:  “We will not resolve any of Pung’s newfound procedural arguments. On remand, the Sixth Circuit may decide whether they were properly preserved in that court, and, if they were, may entertain Pung’s arguments.

Sotomayor concurrence: Justice Sotomayor’s concurrence, joined by Justices Jackson and Gorsuch, merely agreed that the Court was not issuing any opinion on the underlying tax sale procedural issues:  “I do not read the Court’s opinion as identifying the contours of a fair auction, or endorsing the parties’ or the United States’ articulations of what this standard requires. The Court correctly leaves those issues for remand, should the Sixth Circuit find them preserved. With that understanding, I join the Court’s opinion.”

Thomas concurrence:  Justice Thomas concurred as to the proposition that benchmarks other than fair market value may apply in the context of tax foreclosure: “I agree that sufficient historical evidence can justify an exception to the fair market-value rule, and I join the Court’s opinion on that basis. But, any exception based on history can be no broader than what that history justifies. And, on my initial view, any history of tax foreclosure sales reflects a greater respect for principles of just compensation than the County showed the Pungs here.”

One such principle, he argued, was a tradition of taking personalty before real property.  He disputed that an entire residence would need to be foreclosed to satisfy a $2200 tax: 

Here, the County did not try to collect anything less than the entire property—such as the Pungs’ personal goods, their car, or a portion of their land. Instead, for a mere $2,242 debt, the County proceeded immediately to the seizure of the Pungs’ entire $194,400 home. So, although the County invokes history and tradition to justify its departure from the fair-market-value rule, its actions here seem to have departed from that history and tradition.

Implications: The decision preserves the basic architecture of tax foreclosure law as it has operated in jurisdictions across the country for generations. Local governments retain the ability to satisfy unpaid tax debts through public auction without exposure to liability for the gap between sale price and appraised value, provided the auction itself is procedurally sound.  In our Local Government Legal Center brief, filed by NLC, NACo, IMLA, GFOA, and ICMA,  we argued these points, identifying various property tax default processes around the nation and the overwhelming importance of property tax revenues to local government budgets. We also argued that, irrespective of any specific issues that might be found in the Isabella County procedures in this case, the viability of property tax structures nationwide must be preserved– and were gratified to see the Court overwhelmingly reach that conclusion. 

25-95 Pung v. Isabella County (06/23/2026)

LGLC amicus brief: Microsoft Word – Pung v. Isabella County – IMLA Amicus Brief Draft 4935-5474-8806 v.9.docx

Supreme Court Strikes Down Executive Order on Birthright Citizenship

Today, in Trump v. Barbara, the Supreme Court struck down President Trump’s Executive Order purporting to end birthright citizenship.  In doing so, the majority relied on the plain text of the Fourteenth Amendment’s Citizenship Clause, the unbroken history of English common law through Reconstruction that recognized birthright citizenship, and existing Supreme Court precedent.  In terms of the importance of today’s decision, as Chief Justice Roberts explained in writing for the majority: “Citizenship, then and now, was the right to have rights— to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ … We keep that promise today.”

On January 20, 2025, President Trump issued Executive Order No. 14160, titled “Protecting the Meaning and Value of American Citizenship.”  That Order provided that babies born to individuals who were in the United States either unlawfully or temporarily would not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act.  Several lawsuits followed, and one district court provisionally certified a class of all children who would be denied citizenship under the Order and preliminary enjoined the enforcement of the Order.  The Trump administration sought Supreme Court review on the question of whether the Order violates the Fourteenth Amendment or the INA. 

One of the Reconstruction Amendments, the Fourteenth Amendment’s Citizenship Clause provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  It was enacted after the Civil War and in response to the Supreme Court’s decision in Dred Scott v. Sandford, 19 How. 393 (1857).  Dred Scott, considered one of the Court’s most disgraced decisions which today’s majority calls “odious,” held that African Americans, including those that were free, were “not included, and were not intended to be included under the word ‘citizens’ in the Constitution.”  Under that decision, even if Northern states chose to grant citizenship to African Americans, they could not even if they were born in the United States.

In a 5-4 opinion, the majority held that the Fourteenth Amendment’s text is clear: “[a] child born on American soil and subject to American law was made an American citizen.”  History is important context to understand the Citizenship Clause of the Fourteenth Amendment as that Clause was a repudiation of Dred Scott. But to understand the Clause, the majority takes us through a history lesson back to the time of the British Empire and English common law. 

Under English common law, the sovereign’s power, including a claim to the people’s allegiance, was complete.  Under English common law, children born to foreign parents anywhere in the British Isles would remain a British subject because that child owed allegiance to the sovereign.  That view was adopted after the Revolution in the United States and at the time of our country’s founding, the right of the soil – known as jus soli – prevailed. This meant that all “who [we]re born within the jurisdiction of a State” were citizens.   Judicial opinions and treatises at the time of founding confirm that citizenship was based on whether the child was born in America. 

This clear common law rule was then muddied by the slave States which sought to deny citizenship to African Americans.  These laws, which did not even confer citizenship on emancipated slaves resulted in the denial of almost 500,000 African Americans of citizenship status.  Then came the Dred Scott decision, which nationalized the South’s citizenship-stripping project.  It took a bloody Civil War, but in its aftermath came a repudiation of the Dred Scott decision. 

After the Civil War, Congress first passed the Civil Rights Act of 1866 which provided that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby . . . citizens of the United States.”  But Dred Scott still stood as an obstacle to this law, so Congress, per the majority, sought to “permanently enshrine the common law in the Constitution.”   Chief Justice Roberts explained that the goal of the Fourteenth Amendment was to “put the ‘great question of citizenship’ ‘beyond the legislative power’ altogether, to settle the issue once and for all.”  And the “ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions.”  This meant that under the Constitution, with the exception of foreign ministers and members of 19^th century Indian tribes over whom the United States had ceded its jurisdiction, “children born to parents unlawfully or temporarily present in the United States… are citizens at birth.”

Finally, the Court’s precedent provided additional support for its textual and historical analysis.  In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court rejected the federal government’s argument that only children born to parents who were “domiciled” in the United States were citizens under the Fourteenth Amendment.  Instead, the Court in Wong Kim Ark held that all children born in this country, whether to permanent residents or temporary visitors, were citizens (subject to similar exclusions that we have today like for children of ambassadors or other representatives of foreign sovereigns).  And Chief Justice Roberts noted that “[n]ot surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power.”

The federal government focused on the domicile argument that was rejected in Wong Kim Ark.  But the majority countered that: “postenactment history cannot override the text. If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design.”

Justice Kavanaugh concurred in the judgment and dissented in part.  He disagrees with the constitutional holding but would find that the Executive Order violates 8 U.S.C. §1401(a).  Under his view, Congress could change the statute consistent with the Fourteenth Amendment to create exceptions to birthright citizenship. 

Justice Thomas wrote a dissent, joined by Justice Gorsuch and Justice Alito penned a separate dissent.  All three would have upheld the Executive Order though with slightly different arguments.  Justice Gorsuch wrote separately to indicate that in his view, although the Order has some lawful applications and thus can survive a facial challenge, he has doubts as to its legality as applied to children born to parents who are here unlawfully but have long made the United States their home – i.e., their domicile. 

While the Executive Order was always couched as prospective, today’s result avoids potentially stripping approximately 250,000 children per year of citizenship.  This would have resulted in likely increased burdens for local governments that provide critical services to residents in their communities as these children would no longer be eligible for federal benefits like TANF & WIC.  It would have also created some uncertainty for local governments as to how vital records should be administered for children born to parents lacking legal status going forward.  Today’s result maintains the status quo for both individuals and local governments. 

To read the opinion, click here: https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.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/5389/AmicusBriefUpdate.

Recent Federal Fifth Circuit and Texas Cases of Interest to Cities

Note: Included cases are from June 1, 2026 through June 30, 2026. These case summaries have been prepared with the assistance of AI.

Contracts

Prompt Payment Act: City of Edinburg v. Texas Cordia Construction, LLC, No. 13-25-00443-CV, 2026 WL 1597554 (Tex. App.—Corpus Christi-Edinburg June 4, 2026) (mem. op.). The City of Edinburg hired Texas Cordia Construction, LLC for two roadway improvement projects, with contracts executed by Edinburg’s city manager and approved by the city attorney. In May 2022, Cordia invoked the force majeure clauses due to the war in Ukraine, but Edinburg terminated the contracts for convenience. Cordia claimed the city failed to pay accrued interest and other amounts owed, leading to a lawsuit for breach of contract and a Prompt Payment Act (PPA) violation. The city filed a plea to the jurisdiction, arguing Cordia did not demonstrate a valid waiver of immunity. The trial court denied the city’s plea, leading to this accelerated interlocutory appeal.

At the appellate court, the city argued the trial court erred by considering Cordia’s evidence, claiming the plea was solely based on pleadings. The court found the city’s argument frivolous, noting that Cordia’s petition alleged a waiver of immunity under Texas Local Government Code Chapter 271. The court affirmed that Cordia’s evidence demonstrated that the city properly executed the contracts, thus waiving immunity under the PPA. The city’s claims regarding damages were also rejected, as Cordia’s allegations were found sufficient under the PPA. The appellate court overruled the city’s issues and affirmed the trial court’s ruling.

Elections

Illegal Voting: Miller v. Vela, No. 13-26-00347-CV, 2026 WL 1552127 (Tex. App.—Corpus Christi-Edinburg June 1, 2026) (mem. op). Jerry W. Miller contested the results of the March 3, 2026, Democratic primary election for County Commissioner, Precinct 2 of Kenedy County, Texas, where he was initially declared the winner by three votes over Israel “Rale” Vela. Vela filed a petition alleging that illegal votes were counted and that election officials engaged in misconduct. The trial court found that certain votes were illegally cast by individuals not residing in Precinct 2 and declared the election results void, ordering a new election. Miller appealed, arguing that the trial court abused its discretion in its findings regarding voter residency and the legality of certain votes.

The appellate court reviewed the trial court’s judgment for abuse of discretion and sufficiency of evidence. It upheld the trial court’s decision to void the election, affirming that the votes of three individuals should not have been counted due to residency issues and failure to submit a Statement of Residence (SOR). However, the court found that a fourth individual’s vote was improperly excluded, as he met the residency requirements and submitted an SOR. Despite this error, the appellate court concluded that the trial court rendered the proper judgment because the number of illegal votes was sufficient to change the election outcome. Therefore, the appellate court affirmed the trial court’s judgment.

Employment

Illness and Injury Leave: Adams v. Dallas Fort Worth Int’l Airport and Taylor, No. 05-25-00488-CV, 2026 WL 1881017 (Tex. App.—Dallas June 30, 2026) (mem. op.).

Troy Adams filed a lawsuit against Dallas Fort Worth International Airport (DFW) and Jon Taylor, Airport Director of Public Safety, alleging that he was wrongfully terminated and denied fully paid leave under Texas Local Government Code Chapter 177A after sustaining line-of-duty injuries in 2018 and 2019. Adams sought various forms of relief, including reinstatement and a declaration that certain airport policies were void. The trial court dismissed Adams’s claims after DFW filed a plea to the jurisdiction, citing governmental immunity, and Adams appealed.

The court of appeals affirmed the trial court’s decision, finding no error in the dismissal of Adams’s claims. The court concluded that Chapter 177A did not apply retroactively to Adams’s injuries, which occurred before the statute’s effective date, and that the statute did not expressly waive governmental immunity. Additionally, the court determined that Adams’s claims for declaratory relief did not challenge the validity of any statute, thus not waiving immunity. Consequently, the court overruled all of Adams’s issues on appeal.

Texas Commission on Human Rights Act: City of San Antonio v. Esquerra, No. 04-25-00398-CV, 2026 WL 1876199 (Tex. App.—San Antonio June 30, 2026) (mem. op.).

The City of San Antonio appealed an order denying its motion for summary judgment on claims of race discrimination, sex discrimination, hostile work environment, and retaliation under the Texas Commission on Human Rights Act (TCHRA). The trial court had granted summary judgment for the city on national-origin and disability discrimination claims but denied it on the remaining claims. The city argued that Esquerra failed to exhaust administrative remedies and lacked evidence of pretext and causation. The court found that Esquerra’s charge, although not notarized, was sufficient under the TCHRA due to its liberal construction and the work-sharing arrangement with the EEOC. The court also determined that there was more than a scintilla of evidence to support Esquerra’s claims, including evidence from a 2023 integrity investigation and the circumstances of his replacement and treatment post-termination. Consequently, the appellate court affirmed the trial court’s denial of the city’s motion for summary judgment.

Land Use

Eminent Domain: Texas v. JRJ Pusok Holdings, LLC, No. 24-0447, 2026 WL 1699922 (Tex. June 12, 2026). Joyce Hutcherson, Rudolph Pusok, and Jimmie Pusok (JRJ) owned land in Harris County, Texas, which the State intended to acquire for a highway project. After the state initiated condemnation proceedings, the parties settled on a value, and the land was conveyed to the state. When the highway project was rerouted, leaving part of the land unused, JRJ Pusok Holdings, LLC, as the assignee of the landowners, sought to repurchase the surplus property under Texas Property Code Chapter 21. The trial court dismissed JRJ’s claim based on the state’s plea to the jurisdiction, asserting sovereign immunity.

The court of appeals reversed the trial court’s decision, holding that the state’s sovereign immunity was waived for repurchase claims under Chapter 21. The appellate court found that the state acquired the property through eminent domain, allowing JRJ to exercise repurchase rights. The court also concluded that the Harris County civil court at law had jurisdiction over the repurchase claim. The state petitioned for review, challenging these holdings.

The Supreme Court of Texas held that the repurchase statue waived the government’s immunity. It also found that the State acquired the property through eminent domain allowing JRJ to exercise their repurchase rights.

Takings: Goodfellow v. City of North Richland Hills, No. 02-25-00644-CV, 2026 WL 1838892 (Tex. App.—Fort Worth June 25, 2026) (mem. op.). Jessie Goodfellow filed a lawsuit against the City of North Richland Hills and several individuals, alleging that her home flooded due to the approval of a nearby development. She initially claimed promissory estoppel, negligent misrepresentation, and conspiracy against the individuals, and conspiracy against the city, seeking injunctive and declaratory relief. After the defendants filed a plea to the jurisdiction and a motion to dismiss, Goodfellow amended her petition, dropping some claims and adding a constitutional takings claim against the individuals. The trial court granted the plea to the jurisdiction and dismissed all claims with prejudice.

On appeal, Goodfellow argued that the trial court erred by not evaluating jurisdiction based on her amended petition and that sovereign immunity did not bar her claims for prospective injunctive relief against the city. The appellate court found that the trial court had considered the live pleadings and that Goodfellow’s claims for injunctive relief failed because she did not assert any direct claims against the city. The court also held that Goodfellow did not adequately plead ultra vires claims against the individuals and that a constitutional takings claim could not be maintained against individuals. Consequently, the appellate court affirmed the trial court’s dismissal of Goodfellow’s claims.

Takings: Kennedy v. City of Texas City, No. 01-23-00685-CV, 2026 WL 1825835 (Tex. App.—Houston [1st Dist.] June 25, 2026) (mem. op.). In July 2016, Third Avenue 22, LLC purchased property in Texas City, Texas, with Kennedy holding a mortgage interest secured by a deed of trust. The city notified Third Avenue of code violations and initiated abatement actions, resulting in municipal court orders declaring the property a nuisance and authorizing its demolition. The city demolished the property in May 2018 and filed a demolition lien. Kennedy, not notified of the abatement actions, filed a counterclaim against the city for unconstitutional taking and due process violations, which was severed from a tax suit. The trial court denied Kennedy’s motion for partial summary judgment and granted the city’s cross-motion for summary judgment.

On appeal, the court found that Kennedy was entitled to notice of the city’s abatement lawsuit due to his lienholder status, and the city’s failure to provide such notice violated his due process rights, rendering the municipal court’s orders void as to him. The appellate court reversed the trial court’s decision, granting summary judgment to Kennedy on his declaratory judgment claim and inverse condemnation claim, setting aside the municipal court’s orders as void.

Short-Term Rentals: Marfil v. City of New Braunfels, Tex., 178 F.4th 941 (5th Cir. 2026). The case involves property owners in New Braunfels, Texas, who challenged a city zoning ordinance that regulates short-term property rentals in certain residential districts, claiming it violated the Due Process and Equal Protection Clauses of the United States and Texas Constitutions. The ordinance, enacted in 2006 and amended in 2011, prohibits short-term rentals in residential districts unless a special use permit is obtained. The property owners purchased their properties after the ordinance was enacted and were denied zoning changes to allow short-term rentals. The district court dismissed their claims, but the Fifth Circuit vacated that order and remanded the case for further proceedings. On remand, the district court granted summary judgment in favor of the city, which the property owners appealed. This time, the Fifth Circuit affirmed the district court’s decision, holding that Texas law does not recognize a vested property interest in the right to lease homes on a short-term basis. The Fifth Circuit also found that the ordinance did not violate the Equal Protection Clause, as it was rationally related to the city’s goal of preserving the residential character of neighborhoods. The Fifth Circuit emphasized that the ordinance’s line-drawing between 29-day and 30-day rentals was reasonable and not arbitrary. Ultimately, the judgment of the district court was affirmed, with no reversible error found.

Short-Term Rentals: Perkins v. City of Grapevine, No. 02-25-00369-CV, 2026 WL 1765528 (Tex. App.—Fort Worth June 18, 2026) (mem. op.). In this case, Kari Perkins, Kevin Perkins, Richard Mueller, and Pamela Holt (collectively, the owners) sued the City of Grapevine over ordinances that prohibited the use of their single-family residences as short-term rentals (STRs). The Owners claimed that the ordinances violated the Texas Constitution and exceeded the City’s authority under the Zoning Enabling Act. The trial court granted summary judgment in favor of the city and awarded it attorney’s fees.

On appeal, the court overruled the owners’ constitutional complaints, dismissed their ultra vires claim for lack of jurisdiction, and affirmed the trial court’s judgment. The appellate court found that the owners did not have a vested right to use their properties as STRs and that the ordinances were rationally related to a legitimate governmental purpose. The court also upheld the award of attorney’s fees to the city, rejecting the argument that it was inequitable and unjust.

Public Improvement Districts: River Creek Dev. Corp. v. Preston Hollow Capital, LLC, No. 24-1070, 2026 WL 1699928 (Tex. June 12, 2026). The City of Hutto and River Creek Development Corporation filed a complaint against Preston Hollow Capital, 79 HCD Development, Public Finance Authority, and U.S. Bank National Association, seeking a declaratory judgment that certain financial documents related to a public improvement project were void due to non-compliance with the Public Improvement District Act (PIDA) and the Transportation Code. The trial court granted summary judgment in favor of Preston Hollow, ruling that the documents were enforceable and awarded attorney’s fees to Preston Hollow. On appeal, the Austin Court of Appeals affirmed the trial court’s decision, holding that the failure to submit the documents to the Attorney General did not render them void, as the statute did not condition the validity of the documents on such approval. The court also found that the transaction did not violate the PID Act and upheld the trial court’s award of attorney’s fees as equitable and just.

The Supreme Court of Texas, in reviewing the case, affirmed the trial court. The court held that transaction documents were not void due to the corporation’s failure to submit documents to Attorney General for examination and approval. The court also found that the provision of the PIDA that allowed costs to be paid with funds obtained from bonds by state entities did not apply to an interlocal agreement, thus, the agreement was not rendered void because corporation financed improvements with loan from out-of-state bond issuer.

Planned Development District Amendments: Sarno and Sarno v. City of Dallas, et al., No. 05-25-01313-CV, 2026 WL 1749913 (Tex. App.—Dallas June 17, 2026) (mem. op.). Alevtina and Joseph Sarno filed a lawsuit against the Board of Adjustment (BOA) for the City of Dallas, the City of Dallas, and several city officials, after Zion Lutheran Church, located within Planned Development District 1053 (PD 1053), constructed a basketball court near their property without obtaining the necessary permits. The Sarnos claimed that the construction violated city codes and their constitutional rights, and they sought declaratory judgments and alleged ultra vires acts by city officials who approved Zion’s proposed minor amendment to PD 1053 and construction permit. The trial court granted the city parties’ plea to the jurisdiction, dismissing the Sarnos’ claims for due course of law, ultra vires acts, and claims under Chapter XXV of the Dallas City Charter, while retaining jurisdiction over the appeal of the BOA’s decision.

Upholding the trial court’s decision, the appellate court found that the Sarnos’ due course of law claims were barred by governmental immunity because they did not allege the deprivation of a vested property right. The court also concluded that the Sarnos’ requests for declaratory judgment were barred by governmental immunity, as they did not challenge the validity of an ordinance but sought retrospective relief. Additionally, the court determined the Sarnos failed to allege ultra vires acts by the city officials, as they did not demonstrate that the officials acted without legal authority or failed to perform a purely ministerial act.

Tobacco Related Businesses: City of Irving v. Living Room Irving, LLC, No. 05-25-01240-CV, 2026 WL 1654833 (Tex. App.—Dallas June 8, 2026) (mem. op.). The Living Room Irving, LLC, Kalas Nepal, LLC, Pharaohs Hookah Lounge Inc., Friends Hookah Lounge, Inc., and Elpasha LLC (Hookah Lounges) sued the City of Irving seeking declaratory judgment and injunctive relief against an ordinance that redefined “tobacco-related business” in a way that excluded establishments where alcohol is consumed on the premises, such as hookah lounges. They argued that the ordinance conflicted with the city’s zoning ordinance and unlawfully revoked their land use rights without following the zoning amendment process required by Texas Local Government Code Chapter 211. After a hearing on the city’s plea to the jurisdiction on the basis of governmental immunity, the trial court denied the city’s plea and the city appealed.

The court of appeals reversed the trial court’s decision, concluding that the Hookah Lounges did not allege facts sufficient to demonstrate the trial court’s jurisdiction, as their claims focused on the ordinance’s application rather than its validity, which is necessary to waive governmental immunity under the Uniform Declaratory Judgments Act. Consequently, the appellate court rendered judgment dismissing the claims against the city for lack of subject-matter jurisdiction.

Municipal Taxes and Fees

Jurisdiction: State v. City of McAllen, No. 24-1060, 2026 WL 1614384 (Tex. June 5, 2026). In 2017 and 2019, the Texas Legislature reduced the fees cities could charge telecommunications companies for using public rights-of-way, prompting several cities to file a lawsuit against the State of Texas, claiming the reduced fees violated the Texas Constitution’s gift clauses. The cities sought a declaratory judgment, but the courts found that they failed to name a proper defendant, as they did not identify a state officer or agency responsible for enforcing the challenged law.

The appellate court affirmed in part and reversed in part the district court’s decision, agreeing with the cities regarding the gift clauses. However, the Supreme Court of Texas vacated the lower courts’ judgments, stating that the cities’ failure to name a proper defendant deprived the courts of jurisdiction over the action. The case was dismissed for lack of jurisdiction, as the courts could not issue a judgment without a proper defendant.

Franchise Fees: City of El Paso v. Pickett, No. 08-24-00405-CV, 2026 WL 1673499 (Tex. App.—El Paso June 9, 2026) (mem. op.). This case involves a dispute over the legality of a franchise fee charged by the City of El Paso’s Environmental Services Department (ESD) to its residential customers. Pickett challenged the fee, arguing it was an impermissible tax rather than a legitimate fee, and the trial court ruled in his favor. The city appealed, asserting that the fee was valid and not a tax. The court of appeals affirmed the trial court’s decision, finding that the fee was excessive and intended to raise revenue, thus constituting a tax. The court applied the primary purpose test to determine that the fee was not reasonably related to the cost of services provided by the ESD and noted that despite the ordinance’s statement of the fee’s purpose, the city intended the fee to cover expenses unrelated to solid waste disposal. The court also upheld the trial court’s award of attorney’s fees to Pickett, finding it equitable and just.

Video Streaming Service Providers: City of Dallas, et al. v. Disney DTC, LLC, No. 05-24-00712-CV, 2026 WL 1802827 (Tex. App.—Dallas June 22, 2026) (mem. op.).

Thirty-one Texas cities sued Disney Platform Distribution, Hulu, and Netflix alleging the streaming providers owed a 5% gross-revenue fee under the Public Utilities Regulatory Act (PURA) for operations within the cities and asserting related Texas Uniform Declaratory Act, trespass, and unjust-enrichment theories based on alleged use of public rights-of-way without franchise authority. The trial court granted Disney Platform Distribution, Hulu, and Netflix’s Rule 91a motion to dismiss, and the cities appealed.

The court of appeals affirmed, holding the law-of-the-case doctrine bound it to its prior mandamus decision (Disney I) that the cities had no express PURA cause of action against non-franchise holders. The court rejected the cities’ estoppel arguments and found no basis to revisit Disney I, leaving the dismissal intact.

Property Tax Exemptions: Solari and Solari v. Comal Appraisal Dist. & Appraisal Review Bd. of Comal Cnty., No. 03-25-00411-CV, 2026 WL 1825614 (Tex. App.—Austin June 25, 2026) (mem. op.). Turner and Lorenn Solari sought a property tax exemption for two residential lots in Comal County, claiming that their “land patents” exempted them from such taxes. The Comal Appraisal District (CAD) denied the exemption, and the Comal County Appraisal Review Board (ARB) upheld the decision. The Solaris filed a petition for review in the district court, which granted ARB’s plea to the jurisdiction and CAD’s motion for summary judgment, dismissing the Solaris’ claims.

Affirming the lower court’s judgment, the court of appeals found that the district court correctly granted the board’s plea to the jurisdiction because the Tax Code prohibits bringing a petition for review against ARB. Additionally, the court concluded that the Solaris’ properties were subject to ad valorem taxation under the Texas Constitution and Tax Code, regardless of the land patents. The court also determined that the district court properly followed summary judgment procedures and did not rely solely on oral arguments.

Open Government

Council Decorum Policies: Merriott v. City of Bossier City, No. 25-30325, 2026 WL 1830752 (5th Cir. June 25, 2026). Weston Merriott, an online journalist, challenged a policy of the City Council of Bossier City, Louisiana, alleging it violated the First Amendment and Louisiana Open Meetings Law. The policy prohibited “personal, impertinent, or slanderous remarks” and “becoming boisterous” during council meetings. Merriott argued that the policy was overbroad, void for vagueness, and constituted viewpoint discrimination. The district court dismissed Merriott’s claims, but the Fifth Circuit reversed in part, finding that Merriott plausibly alleged the policy was overbroad and void for vagueness. The Fifth Circuit held that the policy’s terms were not clearly defined, allowed for arbitrary enforcement, and that the policy’s prohibition against “personal,” “impertinent,” and “slanderous” speech constituted unconstitutional viewpoint discrimination. Merriott also claimed First Amendment retaliation, alleging councilmembers interrupted him during meetings, which the Fifth Circuit found plausible. Additionally, Merriott alleged violations of the Louisiana Open Meetings Law, claiming a secret meeting occurred without proper notice, which the Fifth Circuit found plausible against some councilmembers. Ultimately, the Fifth Circuit affirmed the dismissal of some claims but reversed others, remanding the case for further proceedings.

Open Meetings Notice: Hays Cnty. v. Carnes, No. 15-25-00121-CV, 2026 WL 1685093 (Tex. App. [15th Dist.] June 9, 2026). In the general election on November 5, 2024, Hays County voters approved $439 million in bonds for local road projects. However, a district court later declared the bond election void, citing insufficient notice under the Texas Open Meetings Act (TOMA) due to the agenda posted by the Commissioners Court. The notice for the August 13 meeting was alleged to be insufficient under the TOMA because it did not mention “Transportation Project” or “roads,” unlike the previous agendas for the July 2 and August 6 meetings. The physical posting for the August 13 agenda only stated: “Discussion and possible action to approve an order calling a bond election for November 5, 2024 to be held within Hays County, Texas; designating voter polling places; providing for early voting and election day voting; providing for performance of required administrative duties; providing for conduct of the election and for the conduct of a joint election with various political subdivisions; and providing for other matters related to such election.”

The Court of Appeals reversed the district court’s holding that the bond election was void, arguing that the online agenda provided sufficient information, and the plaintiffs forfeited their TOMA complaint by delaying their filing until voting began. The appellate court also held that the plaintiffs could not revive their TOMA complaint after the election through a declaratory judgment action under the Expedited Declaratory Judgment Act (EDJA). The appellate court emphasized that no Texas court had ever overturned a general election result due to a TOMA violation unrelated to the election itself. The appellate court concluded that the election results should stand, as the plaintiffs did not act diligently to protect their rights, and the election order became final once the election started. The dissenting opinion argued that the county had the burden to prove compliance with TOMA in the EDJA suit and that the notice was insufficient under TOMA. The dissent also called for the Texas Supreme Court to provide guidance on TOMA compliance in the context of modern technology.

Qualified Immunity

Failure to Identify: Comichi v. Pethel, et al., No. 25-10954, 2026 WL 1802689 (5th Cir. June 23, 2026). E’Mann Comichi attempted to stop the towing of his nephew’s illegally parked rental truck in Euless, Texas, leading to his arrest by police officers. Comichi filed claims under 42 U.S.C. § 1983 against the officers, alleging unlawful search and seizure, false arrest, failure to intervene, and malicious prosecution. The district court dismissed all claims with prejudice on qualified immunity grounds.

The Fifth Circuit Court of Appeals affirmed the dismissal of Comichi’s unlawful-search and unlawful-seizure claims but reversed the dismissal of his false-arrest claim against Officer Pethel. The Fifth Circuit found that Officer Pethel lacked probable cause to arrest Comichi for Failure to Identify and Interference with Public Duties, as his arrest was based solely on his refusal to identify himself. The Fifth Circuit vacated the dismissal of Comichi’s failure-to-intervene and malicious-prosecution claims against Officers Lord and Hamilton, remanding them for consideration on the merits. The Fifth Circuit concluded that Officer Pethel was entitled to qualified immunity on the unlawful search claim, as her actions were deemed reasonable under the circumstances. Finally, Comichi lacked Fourth Amendment standing to challenge the seizure of the truck, as it was considered abandoned under municipal ordinance. Ultimately, the case was remanded for further proceedings consistent with the opinion.

Unreasonable Seizure: Von Derhaar v. Watson, 177 F.4th 626 (5th Cir. 2026). Karl Von Derhaar, a former civilian employee of the New Orleans Police Department (NOPD), sued Lt. Darryl Watson under § 1983, alleging violations of his Fourth Amendment rights. The case arose when NOPD officers, concerned for Von Derhaar’s safety, conducted a wellness check at his home and requested he accompany them to the Public Integrity Bureau (PIB) for a drug test. Von Derhaar expressed a desire to stay home, but when the officers on scene contacted Watson for further instructions, Watson ordered the officers to tell Von Derhaar he was being put back on the clock and must come to work for the test. Von Derhaar complied but resigned instead of taking the drug test and later sued. The district court denied Watson’s motion for summary judgment on the unlawful seizure claim, stating that Watson’s actions were objectively unreasonable and violated clearly established Fourth Amendment law. Watson appealed, asserting qualified immunity, but the Fifth Circuit affirmed the district court’s decision.

The Fifth Circuit held that Watson’s actions constituted an unlawful seizure, as a reasonable person would not have felt free to leave under the circumstances. The court emphasized that Watson’s conduct was objectively unreasonable given the lack of a warrant or exigent circumstances. The denial of summary judgment was affirmed, allowing the case to proceed beyond the summary judgment stage.

Excessive Force: Sanchez v. Nunemaker, No. 25-50596, 2026 WL 1792846 (5th Cir. June 23, 2026). Branden Sanchez filed a § 1983 action against Deputy Sheriff Jonathan Bates Nunemaker, alleging excessive force in violation of the Fourth Amendment. The incident occurred when Nunemaker stopped Sanchez, who was driving a reportedly stolen vehicle involved in an aggravated robbery, and placed him in the back of a police cruiser. Despite being handcuffed and seat-belted, Sanchez was disruptive, leading Nunemaker to use a pepper-spray device from a distance shorter than the manufacturer’s recommended minimum, resulting in Sanchez’s permanent blindness in one eye. Nunemaker’s motion to dismiss, based on qualified immunity, was denied by the district court, and he appealed. The Fifth Circuit affirmed the denial, finding that Sanchez had plausibly alleged a Fourth Amendment violation. The court determined that Nunemaker’s actions were not objectively reasonable, as Sanchez posed no immediate threat while restrained and surrounded by officers. The court also found that the constitutional right was clearly established, analyzing a number of other use-of-force cases. Ultimately, the court concluded that Sanchez’s allegations were sufficient to overcome the qualified immunity defense at the motion to

Tort Claims Act

Governmental Immunity: Torres v. City of Houston, No. 14-25-00525-CV, 2026 WL 1691387 (Tex. App.—Houston [14th Dist.] June 11, 2026) (mem. op.). Torres sued the city after an ambulance driven by EMT Hulsey collided with his vehicle at an intersection. The trial court granted summary judgment in favor of the city, claiming immunity, but the court of appeals reversed this decision due to disputed material facts regarding the ambulance driver’s speed and actions. The city argued that Hulsey was protected by official immunity, but the evidence did not conclusively establish that his actions were performed in good faith; the city’s evidence of good faith was premised in part on the fact that the driver slowed down as he approached the intersection but the record contained evidence that he might have not done so. Additionally, the city failed to prove entitlement to the emergency and 9-1-1 exceptions under the Texas Tort Claims Act, as there were factual disputes about whether Hulsey complied with applicable laws. The case was remanded for further proceedings.

Scope of Employment: City of Houston v. Lopez, No. 14-25-00428-CV, 2026 WL 1753156 (Tex. App.—Houston [14th Dist.] June 18, 2026) (mem. op.). This case involves a hit-and-run accident allegedly caused by a city vehicle, where Lopez claimed injuries as a passenger on a METRO bus involved in the collision. The city appealed the trial court’s denial of its motion for summary judgment, arguing that Lopez failed to provide evidence that the driver was a city employee acting within the scope of employment, which is necessary to show a waiver of governmental immunity under the Texas Tort Claims Act (TTCA).

The court of appeals affirmed the trial court’s decision, concluding that Lopez presented more than a scintilla of evidence to raise a presumption that the driver was a city employee acting within the scope of employment, which the city did not rebut. The court applied common law presumptions regarding employment status and scope of employment, finding them applicable in the TTCA context. The evidence included Lopez’s affidavit and a METRO accident report, which indicated the truck bore City of Houston markings, supporting the presumption that driver was city employee acting in the course of his or her employment.

Emergency Response Exception: Lopez v. City of Houston, No. 14-25-00343-CV, 2026 WL 1876196 (Tex. App.—Houston [14th Dist.] June 30, 2026) (mem. op.). Lopez appealed the trial court’s grant of summary judgment in favor of the city, which was based on the city’s assertion of immunity following a collision between Lopez’s car and a fire truck. The city argued that engineer/operator Grizzaffi was protected by official immunity and that the Texas Tort Claims Act’s emergency exception applied. The court found that the city did not conclusively prove official immunity because there were material fact issues regarding whether Grizzaffi slowed down and had his sirens activated when crossing the intersection. However, the court concluded that the emergency exception applied as a matter of law, as Grizzaffi was responding to an emergency call and did not act with reckless disregard for the safety of others. The trial court’s summary judgment was affirmed, and Lopez’s issues on appeal were overruled.

Premises Defect: Harris County v. Durant, No. 01-24-01020-CV, 2026 WL 1655960 (Tex. App.—Houston [1st Dist.] June 9, 2026) (mem. op). A fifteen-year-old pedestrian, A.D., was struck by a car driven by Elvis Hernandez while crossing the road near Dekaney High School before school hours. The accident occurred when it was dark, and the school-zone flashers, maintained by Harris County, were not yet activated. A.D. and her guardian, Lisa Durant, sued the county under the Texas Tort Claims Act (TTCA), alleging that the county failed to properly maintain the school-zone flashers by programming them to start too late. The county filed a plea to the jurisdiction and motions for summary judgment, claiming governmental immunity. The trial court denied these motions.

On appeal, the appellate court reversed the trial court’s decision, concluding that the county retained governmental immunity. The court found that the school-zone flashers were operating as intended and did not have a condition or malfunction that required correction under the TTCA. The court also determined that the decision regarding the timing of the flashers was a discretionary policy decision, for which the county retained immunity. Consequently, the appellate court rendered judgment dismissing the claims against the county for lack of subject-matter jurisdiction.

Pleading Sufficiency: City of Houston v. Allstate & Cas. Ins. Co., No. 14-25-00727-CV, 2026 WL 1691389 (Tex. App.—Houston [14th Dist.] June 11, 2026) (mem. op.). The city appealed the denial of its motion to dismiss under Texas Rule of Civil Procedure 91a, arguing that Allstate failed to establish timely notice of claim, that the trash truck operator was acting within the scope of employment, and that the Texas Tort Claims Act (TTCA) does not waive immunity for damages caused by defective equipment. Allstate alleged that a city-owned trash truck, operated by an employee, caused property damage to its insured’s vehicle. The court found that Allstate sufficiently pleaded timely notice by alleging compliance with the city’s ninety-day notice requirement. It also determined that Allstate adequately alleged that the employee was acting within the scope of his employment. Furthermore, the court held that the claim fell within the TTCA’s motor-vehicle waiver, despite the petition describing the condition of the trash truck as having defective equipment. Consequently, the court affirmed the trial court’s judgment, overruling the city’s issues on appeal.

Recreational Use: City of Keller v. Dipaolo, No. 02-25-00600-CV, 2026 WL 1838888 (Tex. App.—Fort Worth June 25, 2026) (mem. op.). Michael DiPaolo sued the City of Keller after sustaining severe injuries at the city’s recreational facility, alleging premises liability, negligence, and gross negligence. DiPaolo was injured while playing pickleball on a basketball court with an unpadded cinderblock wall, a hazard previously reported to the city. The city argued it was immune from suit under the Texas Tort Claims Act (TTCA) because DiPaolo failed to provide notice of his claims within the required six-month period.

The appellate court affirmed the trial court’s denial of the city’s plea to the jurisdiction, concluding that the city had actual notice of DiPaolo’s claims. The court found that the city was subjectively aware of its alleged fault due to prior reports of similar injuries and communications urging the installation of wall padding. The court also determined that the Recreational Use Statute did not modify the TTCA’s notice requirements.

Recent Texas Attorney General Opinions of Interest to Cities

Note: Included opinions are from June 1, 2026, through June 30, 2026.

KP-0520 (Gambling Devices): An amusement machine that offers both a chance-based game mode as well as a skill-based mode is a gambling device under Penal Code Chapter 47 so long as chance plays any role in determining whether the player receives something of value, regardless of the presence of skill.

KP-0521 (Energy Source Discrimination): Subsection 181.903(b) of the Utilities Code prohibits the City of Austin from adopting or enforcing a code that has “the purpose, intent, or effect of directly or indirectly . . . discriminating against” a utility service based on the type or source of energy. As such, the City of Austin’s Energy Code cannot lawfully memorialize opposition to the use of natural gas utility services and is invalid to the extent that it does so.

KP-0522 (Job Posting): Though it may be legally advisable, we find no statute that requires all county elected officials to publicly advertise for job openings in their offices. Whether any particular employment practice adopted by a commissioners court as to an elected official’s employee is permissible depends on (1) whether the action taken is within the authority of the commissioners court and, if so, (2) whether the action usurps or unreasonably interferes with the performance of the elected official’s constitutional or statutory duties. A commissioners court must restrict the amount of time that an employee may contribute to and withdraw from a county sick leave pool as provided in chapter 157, subchapter E of the Local Government Code.