Monthly Newsletter

2024 TCAA Summer Conference: Call for Speakers

The Texas City Attorneys Association invites all attorneys interested in presenting at the 2024 TCAA Summer Conference to submit your ideas to Amber McKeon-Mueller by January 12, 2024.  The conference will be held at the Isla Grande Beach Resort in South Padre Island on June 12-14, 2024. The TCAA board will set the agenda for the summer conference at its February board meeting. Questions? Contact Amber McKeon-Mueller at amber@tml.org or 512-231-7400.

Save the Date: 2024 Riley Fletcher Basic Municipal Law Seminar

The 2024 Riley Fletcher Basic Municipal Law Seminar will take place on February 8-9 in Austin. We hope you can join us in Austin, but if you can’t, the seminar will also be available by live videocast. For more information or to register, please click here.

TCAA Law Students Conference Scholarships

TCAA invites law students attending ABA-accredited law schools to submit an application for a scholarship to attend the Riley Fletcher Basic Municipal Law Seminar to be held on February 8-9, 2024.  Each scholarship will cover conference registration fees.  Scholarship recipients will be exposed to various facets of municipal law and have an opportunity to interact with TCAA Board Members and municipal law attorneys across the State.  For more information and to fill out an application, please click here.

TCAA Online Membership Directory

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here.

IMLA Membership

Membership with IMLA doesn’t just mean discounts at their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2023 Fall Conference, 2023 Summer Conference, and Paralegal Program Webinars

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

Note: Included cases are from November 1, 2023, through November 31, 2023.

Sexual Harassment: Doe v. Burleson Cnty., Tex., 86 F.4th 172 (5th Cir. 2023). A county employee who worked as a criminal clerk in a county attorney’s office brought a Section 1983 action against the county and the county judge arising from the judge’s alleged sexual misconduct towards her. The federal district court vacated the trial date based on a finding that the judge lacked requisite final policymaking authority to hold the county liable, and subsequently, granted the county’s motion for judgment on the pleadings. The county employee appealed.  

The court of appeals affirmed, holding that the judge lacked requisite final policymaking authority to hold the county liable under Section 1983 for his alleged sexual misconduct.

Fair Housing Act: Women’s Elevated Sober Living L.L.C. v. City of Plano, Tex., 86 F.4th 1108 (5th Cir. 2023).  The operator of a sober-living home and home resident brought action against city, alleging the city’s refusal of the operator’s request for a zoning accommodation that would allow 17-20 residents in the home violated the Fair Housing Act (FHA). The city’s zoning ordinance allows only two types of residences in single family zones, either a “household” or a “household care facility,” and limits the household care facility to eight unrelated disabled individuals and two caretakers.  The federal district court held that the city violated the FHA after concluding that the operator’s proposed accommodation was therapeutically necessary as compared to the offered alternative, considering the disabilities of the residents.

The court of appeals reversed and remanded, holding that the district erred by applying a standard accepting that “therapeutically beneficial treatment” constitutes necessity under the FHA, and the evidence was insufficient to support finding that requested accommodation was necessary to support a failure-to-accommodate claim.

Administrative Law: Port Arthur Cmty. Action Network v. Tex. Comm’n on Envtl. Quality, 86 F.4th 653 (5th Cir. 2023). A nonprofit environmental organization petitioned for judicial review of a determination by the Texas Commission on Environmental Quality (TCEQ), pursuant to the federal Clean Air Act and the Texas Clean Air Act, granting a Prevention of Significant Deterioration (PSD) permit to an applicant that planned to build a liquefied natural gas (LNG) plant and export terminal. The applicant interven

The court of appeals found that the organization’s member had Article III standing to challenge the permit decision.  Additionally, the court determined that TCEQ failed to explain its departure from prior policy requiring PSD applicants to adhere to emissions limits in prior permits regardless of prior-permitted facilities’ operational status. The court determined that when a Texas state agency departs from its own administrative policy, or applies a policy inconsistently, Texas law requires it to adequately explain its reasons for doing so. In this case, the TCEQ declined to impose certain emissions limits on a new natural gas facility that it had recently imposed on another such facility. In doing so, it contravened its policy of adhering to previously imposed emissions limits, but it did not adequately explain why. It therefore acted arbitrarily and capriciously under Texas law. Accordingly, the court vacated TCEQ’s order granting the emissions permit at issue and remanded for proceedings consistent with the court’s opinion.

Qualified Immunity: Bailey v. Iles, No. 22-30509, 2023 WL 8062239 (5th Cir. Nov. 21, 2023).

An arrestee brought a Section 1983 action against a detective and sheriff, alleging false arrest under the Fourth Amendment, First Amendment retaliation, as well as state law claims for malicious prosecution and false arrest, arising from his arrest for a social media post he made stating that sheriff’s deputies would shoot COVID-19 “infected” persons “on sight.” Both sides moved for summary judgment. The federal district court granted the detective’s and the sheriff’s motion. The arrestee appealed.

The court of appeals reversed and remanded, holding that: (1) the social media post did not rise to the level of incitement outside of First Amendment protection; (2) the post was not a “true threat” that was unprotected by the First Amendment; (3) the detective did not have probable cause to make a warrantless arrest under Louisiana terrorizing statute; (4) the detective was not entitled to qualified immunity from the false arrest claim; (5) the arrestee satisfied elements for retaliation under the First Amendment; and (6) the detective was not entitled to qualified immunity from the arrestee’s First Amendment retaliation claim.

Qualified Immunity: Sligh v. City of Conroe, Tex., No. 22-40518, 2023 WL 8074256 (5th Cir. Nov. 21, 2023). After an arrestee with a mental health condition was injured by a prolonged bite from a city police officer’s police dog, the arrestee brought a Section 1983 action against the officer, county sheriff’s deputy, city, and county, alleging a violation of the Fourth Amendment, and asserting excessive-force claim against the officer, failure-to-intervene/bystander liability claim against the deputy, a Monell claim against the city, and claims against the city and the county for failure to accommodate her mental health condition under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The officer and deputy asserted qualified immunity.  The federal district court dismissed the case for failure to state a claim.  The arrestee appealed.

The Court of Appeals affirmed, finding that the: (1) the officer’s decision to deploy the police dog against the arrestee constituted an excessive use of force, thus violating a constitutional right; (2) the officer was entitled to qualified immunity from the excessive-force claim; (3) the deputy was entitled to qualified immunity for bystander liability; (4) the city was not liable for the Section 1983 claim based on inadequate policies; (5) the arrestee failed to state a Section 1983 claim against the city for failure to train; and (6) the arrestee failed to state a claim against the city and county for failure to accommodate her alleged mental health disability.

Note: Included cases are from November 1, 2023, through November 31, 2023.

Uniform Declaratory Judgment Act: City of Kemah v. Joiner, No. 01-23-00105-CV, 2023 WL 8041040 (Tex. App.—Houston [1st Dist.] Nov. 21, 2023) (mem. op.). Carl Joiner, the former mayor of the City of Kemah, sued the city for a declaratory judgment compelling the city to release the results of an investigative report relating to Joiner’s conduct in a renovation and expansion project for city hall and related infrastructure. Joiner, as mayor, saw the report but the city chose not to release the report to the public. The city filed a plea to the jurisdiction, claiming governmental immunity and challenging Joiner’s standing to sue. The trial court denied the plea and the city appealed.

The appellate court reversed and remanded, giving Joiner an opportunity to replead. The appellate court held that: (1) the Uniform Declaratory Judgment Act provides a waiver of immunity only for challenges to the validity of an ordinance or statute; (2) The Texas Open Meetings Act provides a waiver of immunity only for suits brought by mandamus or injunction; and (3) the Public Information Act provides a waiver of immunity only for suits brought by a district or county attorney or the attorney general. Therefore, Joiner had not met his burden to show a waiver of immunity.

Employment Law: Leonard v. City of Burkburnett, No. 02-22-00266-CV, 2023 WL 7210339 (Tex. App.—Fort Worth Nov. 2, 2023) (mem. op.).  Following his termination of employment as a police officer with the city, Leonard filed a lawsuit against the city and two city officials, alleging the following claims: (1) denial of his rights without due course of law; (2) denial of equal protection under the law; (3) denial of his right to free speech; (4) denial of his right to freely associate and assemble; (5) wrongful termination; (6) denial of his right to petition; (7) violation of section 617.005 of the Government Code; (8) civil conspiracy; (9) official oppression by the two officials; and (10) violations of the Texas Open Meetings Act. Leonard sought declaratory relief, injunctive relief, mandamus relief, and attorney’s fees, but he expressly denied “seeking money damages.” The city filed pleas to the jurisdiction, requesting dismissal for lack of subject matter jurisdiction.  The trial court granted the pleas, and Leonard appealed.

The appellate court affirmed in part and reversed and remanded in part.  The court remanded the following claims to the trial court: (1) that the city violated Leonard’s rights to free speech and assembly by wrongfully terminating his employment because of his support of civil-service implementation at the police department and related involvement in the police association; and (2) that one of the city officials failed to comply with Chapter 614 of the Government before terminating Leonard’s employment. The court also remanded the case so that Leonard may be given the opportunity to replead his equal-protection and due-course-of-law claims and the claim that he is entitled to additional rights pursuant to the “formal appeal procedure” delineated in the city’s personnel handbook. The court affirmed the remainder of the trial court’s judgement.

Tort Claims Act/Takings: Voorhies v. Town of Hollywood Park, No. 04-22-00658-CV, 2023 WL 7171494 (Tex. App.—San Antonio Nov. 1, 2023) (mem. op.). Plaintiffs sued the city claiming: (1) the city did not use land dedicated “for recreational purposes only” for recreational purposes because it generated revenue by leasing the facility to private individuals for weddings, parties, and other events; and (2) the city’s use of the land diminished the value of plaintiffs’ property. The city filed a plea to the jurisdiction because its operation of a park was a governmental function and the challenged actions did not constitute a taking of the plaintiffs’ property. The trial court granted the plea and the plaintiffs appealed.

The appellate court affirmed and determined: (1) the city’s decisions about how, when, and by whom the property may be used are discretionary as part of an enumerated governmental function in operating a civic or community center; (2) the plaintiffs’ claims did not state a taking because they did not allege the noise rendered their home unusable or affected their property in a unique way different from the community as a whole; (3) plaintiffs’ claims for declaratory relief failed because they only alleged the city violated their own noise ordinances, not that an ordinance was invalid; and (4) the plaintiffs did not have standing to challenge the deed restriction on the city’s property.

Elections: Rodriguez v. Rangel, No. 04-23-00099-CV, 2023 WL 7474976 (Tex. App.—San Antonio Nov. 13, 2023). This case arises from an election dispute where Rodriguez received six more votes than Rangel in an election for city council. At trial, the court ruled that seven votes for Rodriguez were illegally cast and declared Rangel the winner. Rodriguez appealed. The appellate court addressed numerous challenges to the trial evidence and affirmed all but one of the trial court’s findings.

Contracts: Travis Cnty. Mun. Util. Dist. No. 10 v. Waterford Lago Vista, LLC, No. 07-23-00182-CV, 2023 WL 8042570 (Tex. App.—Amarillo Nov. 20, 2023) (mem. op.). A developer entered into an agreement with the municipal utility district (MUD) to provide for construction of water, sewer, and drainage facilities to serve property owned by the developer and it included rights to reimbursement for costs of the project. The developer defaulted on its loan and on foreclosure, the rights ultimately were assigned to Waterford. Waterford requested reimbursement under the agreement, which the MUD denied because it argued the terms of the agreement regarding assignment were not followed. Waterford sued and the MUD filed a plea to the jurisdiction, arguing there was no waiver of sovereign immunity under Local Government Code Sections 271.151 and 271,152. The trial court denied the plea and the MUD appealed.

In affirming the trial court’s denial, the appellate court found: (1) prior cases with similar facts found that sovereign immunity was waived when a governmental entity agrees to reimburse a developer for costs associated with projects like the one in this case and the contract fell into a contract for “goods and services”; and (2) the MUD’s argument that Waterford did not have standing to sue was really a capacity to seek reimbursement issue, not a standing issue.

Morris v. City of Midland, No. 11-22-00209-CV, 2023 WL 8262750 (Tex. App.—Eastland Nov. 30, 2023). Paula Morris was fined by the city of Midland’s municipal court for multiple city ordinance violations including: (1) illegally parking a trailer or recreational vehicle in a residential area; (2) holding garage sales in excess of what was allowable; and (3) accumulating debris on her property. After failing to pay all the court ordered fines and continuing to violate city ordinances, the city sought a temporary injunction, permanent injunction, and civil penalties in district court. After a number of continuances, the trial court granted the city’s request for a temporary injunction, but Morris continued to violate city ordinances and the temporary injunction. Thereafter the city filed a motion for summary judgment, and the trial court granted the city’s motion and entered a final judgment for a permanent injunction. Morris subsequently appealed. Morris claimed, among other things, that: (1) the permanent injunction was unconstitutionally vague and violated Rule 683 of the Texas Rules of Civil Procedure; (2) the city failed to make a showing of irreparable harm and the lack of an adequate remedy at law; and (3) the city’s nuisance ordinance was invalid.

The court held that because Morris failed to raise her constitutional claim and did not present any objections to the city’s nuisance ordinance at trial, she waived appellate review on these issues. To Morris’s claim that the permanent injunction violated Rule 683, the court clarified that the rule is only applicable to temporary injunctions. However, the court disagreed that the permanent injunction was unclear, and determined that the injunction clearly stated which activities she was enjoined from committing. Lastly, because the city offered ample evidence that Morris had repeatedly violated city ordinances and caused irreparable harm to her neighbors’ use and enjoyment of their property, the court upheld the trial court’s permanent injunction.

Whistleblower Act: City of Valley Mills v. Chrisman, No. 13-22-00144-CV, 2023 WL 7851699 (Tex. App.—Corpus Christi–Edinburg Nov. 16, 2023) (mem. op.). Chrisman and Troxell sued the City of Valley Mills under the Whistleblower Act, claiming they were terminated in retaliation for making a police report alleging that city officials stole their deer feeders that they had installed on city property. The city filed a plea to the jurisdiction claiming governmental immunity, which the trial court denied. The city appealed.

The appellate court reversed, holding that because Chrisman and Troxell knew that personal deer feeders were not permitted on city property, they could not show that the police report they made was in good faith. Therefore, their Whistleblower Act claim failed and the city’s governmental immunity was not waived.

Tort Claims Act: City of Corpus Christi v. Rios, No. 13-21-00414-CV, 2023 WL 7851900 (Tex. App.—Corpus Christi–Edinburg Nov. 16, 2023) (mem. op.). Rios sued the City of Corpus Christi under the Texas Tort Claims Act (TTCA) after she was injured in a traffic accident involving a stolen city police vehicle driven by a suspect who had been placed under arrest and left inside the vehicle. The city filed a plea to the jurisdiction arguing that it was protected by governmental immunity, which the trial court denied. The city appealed.

The appellate court reversed and rendered judgment, holding that the officers were performing a discretionary function when they arrested the suspect and placed him in the vehicle, so the officers were entitled to official immunity. Therefore the city’s governmental immunity had not been waived.

Immunity: Edney v. City of Waco, No. 13-22-00152-CV, 2023 WL 8270628 (Tex. App.—Corpus Christi–Edinburg Nov. 30, 2023) (mem. op.). Edney sued the city of Waco claiming an illegal search and seizure after he was arrested at a mall for trespass and illegal carrying of a weapon. The city filed a motion to dismiss and a plea to the jurisdiction, claiming governmental immunity for the city and official immunity for the police officers who arrested Edney. The trial court granted the city’s motion to dismiss and the city’s plea to the jurisdiction, reasoning that the city’s governmental immunity had not been waived for Edney’s claim.  Edney appealed the trial court’s grant of the city’s motion to dismiss.

The appellate court affirmed, holding that on appeal Edney had only challenged the trial court’s grant of the city’s motion to dismiss and did not challenge the trial court’s grant of the city’s plea to the jurisdiction. Because both dispositive motions relied on the city’s governmental immunity, the appellate court could not reverse the trial court regardless of whether the grant of the motion to dismiss was proper.

2024 TCAA Summer Conference: Call for Speakers

The Texas City Attorneys Association invites all attorneys interested in presenting at the 2024 TCAA Summer Conference to submit your ideas to Amber McKeon-Mueller by January 12, 2024.  The conference will be held at the Isla Grande Beach Resort in South Padre Island on June 12-14, 2024. The TCAA board will set the agenda for the summer conference at its February board meeting. Questions? Contact Amber McKeon-Mueller at amber@tml.org or 512-231-7400.

Save the Date: 2024 Riley Fletcher Basic Municipal Law Seminar

The 2024 Riley Fletcher Basic Municipal Law Seminar will take place on February 8-9 in Austin. Be on the lookout for an email announcing registration opening soon.

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 at their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2023 Fall Conference and 2023 Summer Conference

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

Note: Included cases are from October 1, 2023, through October 31, 2023.

Family Medical Leave Act: Murillo v. City of Granbury, No. 22-11163, 2023 WL 6393191 (5th Cir. Oct. 2, 2023). Murillo, a public works employee of the City of Granbury, sued the city under the Family Medical Leave Act (FMLA), for retaliation after she was terminated for failing to report to work on the first day following the end of her FMLA leave. Murillo also made a claim under 42 U.S.C. § 1983 and alleged a conspiracy to interfere with her rights. The city moved for summary judgment and the trial court granted the motion, reasoning that Murillo’s FMLA claim failed because she was no longer on FMLA leave when she was terminated, her § 1983 claim failed due to her failure to identify a constitutional violation, and her conspiracy claim failed due to her failure to show an agreement between multiple people to violate her rights. Murillo appealed only the court’s grant of summary judgment on her FMLA retaliation claim.

The appellate court reversed, holding that because Murillo had met her prima facie burden to show FMLA retaliation, the burden then shifted to the city to offer a legitimate reason for her termination. The city’s personnel manual stated that an employee would be terminated after three consecutive days of failure to appear at work, so the city’s reason for terminating Murillo on the first day after her leave ended was not a legitimate reason.

Civil Rights: Walker v. City of Houston, No. 22-20537, 2023 WL 6457926 (5th Cir. Oct. 4, 2023).Walker sued the City of Houston and several police officers under 42 U.S.C. § 1983, alleging that they used excessive force against him during an arrest. The district court granted summary judgment in favor of the city and Walker appealed.

The appellate court affirmed, holding that the force used against Walker was objectively reasonable under the circumstances because the record showed that the crime Walker was arrested for was a severe crime, Walker posed an immediate threat, and Walker was actively resisting arrest at the time the force was used.

Civil Rights: Fuhr v. City of Sherman, Tex., No. 23-40116, 2023 WL 6518159 (5th Cir. Oct. 5, 2023).Fuhr sued the City of Sherman for racial discrimination after the city hired an outside applicant, Coleman, instead of promoting Fuhr to an open supervisory position. Fuhr alleged that the city chose not to promote him because he was white, in violation of the Civil Rights Act. The trial court granted the city’s motion for summary judgment and Fuhr appealed.

The appellate court affirmed, holding that although Fuhr had met his prima facie burden for his racial discrimination claim so the burden shifted to the city to show a nonpretextual reason for choosing not to promote Fuhr, the city easily met its burden because Coleman was significantly more qualified for the position than Fuhr.

Takings Clause: Baker v. City of McKinney, Tex., 84 F.4th 378 (5th Cir. 2023). Baker sued the City of McKinney for violations of the takings clauses of the United States and Texas Constitutions after her home was severely damaged when the police used multiple tools, including explosive devices and gas grenades, to rescue a child being held hostage by an intruder inside her home. The city filed a motion to dismiss based on governmental immunity and Baker filed a motion for partial summary judgment on the matter of the city’s liability. The trial court denied the city’s motion to dismiss and granted Baker’s motion for summary judgment. A jury trial on the matter of damages followed, and a jury awarded Baker damages for her home and personal property. The city appealed both the trial court’s denial of its motion to dismiss and the trial court’s grant of Baker’s motion for summary judgment.

The appellate court reversed, holding that history and precedent established the necessity exception to the takings clauses in both state and federal law, which allows the government to damage or destroy property without compensation in the case of public emergency.

Tax Injunction Act: Harward v. City of Austin, 84 F.4th 319 (5th Cir. 2023). Harward, along with several other property owners along the shore of Lake Austin, sued the City of Austin under the due process, equal protection, takings, and ex post facto clauses of the federal Constitution, together with state law claims, seeking declarations, injunctions, and writs of mandamus following a City of Austin ordinance that (1) declared the properties to be within the city’s limited-purpose jurisdiction; (2) repealed a 1986 ordinance promising not to tax the properties until the city provided services; and (3) announced that the properties are subject to taxation regardless of whether the city provides services. In the lawsuit, the property owners alternatively sought an award of just compensation for the taking of their properties’ jurisdictional status, provision of city services, or disannexation. The trial court dismissed all the claims as barred by the Tax Injunction Act (TIA), and Harward appealed.

The appellate court affirmed in part and reversed and remanded in part, holding that: (1) the TIA did not preclude the property owner’s claim to invalidate the ordinance or alternative claims for just compensation, provision of services, or disannexation because these did not directly challenge the taxing power of the city;  (2) the TIA barred the property owners’ request for a declaration that the city’s notices to the appraisal district that the properties were in the taxing boundaries were invalid; and (3) the TIA barred the property owners’ request for a writ of mandamus directing the city to instruct the appraisal district and tax collected that the properties were in the city’s extraterritorial jurisdiction.

Sexually Oriented Businesses: Ass’n of Club Executives of Dallas, Inc. v. City of Dallas, Tex., 83 F.4th 958 (5th Cir. 2023). The owners of several sexually oriented businesses and their trade organization (SOBs) sued the City of Dallas challenging the constitutionality of a city ordinance that barred SOBs from operating between the hours of 2:00 am and 6:00 am, alleging that their free speech rights were violated because the ordinance impermissibly restricted speech. The trial court granted the SOBs request for a preliminary injunction and the city appealed.

The appellate court reversed, holding that the city was likely to show that the ordinance was designed to further a substantial government interest because it was backed by ample data and that the SOBs were unlikely to succeed on a claim that the ordinance substantially restricted speech because the ordinance left the SOBs free to operate for 20 hours a day.

Civil Rights: Dusterhoft v. City of Austin, No. 23-50313, 2023 WL 6785842 (5th Cir. Oct. 13, 2023). Dusterhoft, a City of Austin assistant police chief, sued the city and the chief of police after he was demoted and subsequently fired, alleging that he was demoted and fired as retaliation for statements alleging wrongdoing in the police department that he made during the meeting in which he was demoted. Dusterhoft claimed that the city and several city officials conspired against him and retaliated against him for exercising his First Amendment right to free speech by making the statements about the department. The city moved to dismiss both claims, the trial court granted the motion, and Dusterhoft appealed.

The appellate court affirmed, holding that because Dusterhoft was speaking as a public employee rather than a private citizen when he made the statements about the department at the private meeting that resulted in his demotion, the speech was not protected by the First Amendment and therefore his claims failed.

Note: Included cases are from October 1, 2023, through October 31, 2023.

Employment: City of Pasadena v. Poulos, No. 01-22-00676-CV, 2023 WL 7134974 (Tex. App.—Houston [1st Dist.] Oct. 31, 2023) (mem. op.). Poulos sued the City of Pasadena under the Texas Commission on Human Rights Act, asserting claims for hostile work environment, alleging that her supervisor treated her unfavorably compared to her white co-workers. She also asserted claims for retaliation, alleging that she received adverse employment actions such as having leave denied in retaliation for raising the issue of her unfavorable treatment and racial discrimination. The city filed a motion to dismiss, claiming governmental immunity. The trial court denied the motion and the city appealed, arguing that Poulos had not timely filed suit or served the city with process and that her charge of discrimination was not actionable under the TCHRA.

The appellate court reversed in part and affirmed in part, holding that: (1) Poulos’s racial discrimination claim was not actionable under the TCHRA because being denied leave on a specific day did not constitute an adverse employment action; (2) Poulos had not made a prima facie case for her hostile work environment claim because she had not shown that the treatment she received was related to her race or that is was so severe and pervasive that it affected a term, condition, or privilege of her employment; and (3) because the city failed to state why Poulos’s cause of action for her retaliation had no basis in law in its motion to dismiss, there was no grounds to dismiss the retaliation claim.

Tort Claims Act: City of Arlington v. Taylor, No. 02-22-00325-CV, 2023 WL 6631533 (Tex. App.—Fort Worth Oct. 12, 2023) (mem. op.). Taylor sued the City of Arlington after he was in a vehicular collision with a city police officer who was responding to an emergency.  The city filed a plea to the jurisdiction, asserting it was entitled to immunity under the emergency exception to the Texas Tort Claims Act (TTCA).  The trial court denied the city’s plea, and the city appealed.  After considering the city’s motion for rehearing en banc, the appellate court withdrew its May 18, 2023, memorandum opinion and substituted it with this October 12, 2023, opinion.  The appellate court reversed and rendered the judgement dismissing Taylor’s claims, finding that Taylor bore the burden of negating the application of the TTCA’s emergency exception and had failed to do so.

Tort Claims Act: City of Laredo v. Torres, No. 04-22-00453-CV, 2023 WL 6453823 (Tex. App.—San Antonio Oct. 4, 2023) (mem. op.). The plaintiff sued the city on February 18, 2021, for damages for a light pole that fell on him on February 18, 2019. The city filed a plea to the jurisdiction. The trial court denied the city’s plea and the city appealed.

The appellate court reversed and found: (1) there was a fact issue about the plaintiff’s timely notice of claim letter that identified the plaintiff, his injuries, and that a city lamp post fell on him; (2) the light pole was not a special defect; and (3) the city had no prior knowledge of the light pole as a dangerous condition so the plaintiff could not establish a premises defect.

Tort Claims Act: City of Uvalde v. Pargas, No. 04-23-00150-CV, 2023 WL 7005872 (Tex. App.—San Antonio Oct. 25, 2023) (mem. op.). The plaintiff sued the city for a premises defect and/or special defect when she fell in a hole and fractured her ankle while walking along FM 1435. The city filed a plea to the jurisdiction on multiple grounds, including that it did not owe a legal duty to the plaintiff because it did not own, control, or maintain the premises where she fell. At the hearing on the city’s plea, Texas Department of Transportation’s attorney represented that she believed the hole was in TxDOT’s right-of-way. The trial court denied the plea.

On appeal, the appellate court found that: (1) there was some evidence that the city controlled the premises because: (a) the agreement between the city and TxDOT still required the city to require repairs of utility services and the hole was from a removed utility pole; and (b) the city made the repair after the plaintiff fell which shows control; (2) the plaintiff failed to present evidence that the city had actual knowledge of the hole for an ordinance premises defect; (3) there was a fact issue about whether the hole was a special defect and the city should have known about it; and (4) the city had a duty to repair the hole if it owned or controlled the land where the special defect is. The appellate court reversed the denial of the plea on the ordinary premises defect claim but affirmed on the other grounds.

City of Laredo v. Moreno, No. 04-22-00624-CV, 2023 WL 7005871 (Tex. App.—San Antonio Oct. 25, 2023) (mem. op.). This case involves a lot of procedural history. The plaintiff sued the city when he was terminated from his job as the water treatment superintendent, which is subject to the city’s civil service rules and regulations. He alleged federal and state due process violations and sought an injunction to be reinstated. The trial court granted the request for a temporary injunction and ordered the city to reinstate the plaintiff. The city filed a plea to the jurisdiction, which the trial court denied. The appellate court affirmed the denial.

Then the trial court extended the preliminary injunction and ordered the plaintiff to pay $5,000 in a bond. The city requested the trial court increase the bond and the trial court denied the city’s motion. The city appealed the bond amount and appealed the trial court’s further order requiring the city to reinstate the plaintiff.

The appellate court dissolved the trial court’s injunction and found: (1) the trial court abused its discretion in granting the plaintiff’s request for a temporary injunction to reinstate him because he did not demonstrate an irreparable injury and did not demonstrate why monetary damages would not compensate him; and (2) the city did not demonstrate the amount of the supersedeas bond was improper.

Tort Claims Act: City of Dallas v. Holmquist, No. 05-23-00276-CV, 2023 WL 6547911 (Tex. App.—Dallas Oct. 9, 2023). Remy Holmquist sued the city of Dallas for negligence after falling into a hole in a grassy area after stepping off a sidewalk in one of the city’s parks at night. Holmquist originally claimed the hole was a premise defect under Tex. Civil Practice & Remedies Code Sec. 101.022(a). After the city filed a plea to the jurisdiction, Holmquist amended his petition claiming the hole was a special defect under Sec. 101.022(b). After a hearing, the trial court denied the city’s plea, and the city filed an interlocutory appeal.

The court of appeals, in reversing the trial court’s order, held that the hole was neither a special defect nor a premise defect where: (1) it was in a grassy area off the walking path not intended for use by pedestrians in the park and Holmquist did not act as an ordinary user when he walked in this area; and (2) Holquist presented no evidence the city had any actual knowledge of the hole or was grossly negligent.

Tort Claims Act: Wilson v. City of Houston, No. 14-22-00666-CV, 2023 WL 6561249 (Tex. App.—Houston [14th Dist.] Oct. 10, 2023) (mem. op.). Brian Wilson was involved in a collision with a City of Houston fire truck on September 29, 2017. He filed a lawsuit against the City on September 27, 2019, claiming negligence and other causes of action under the Texas Tort Claims Act (TTCA). The city responded with a motion for summary judgment, citing, among other defenses, Wilson’s failure to provide timely notice of his claims, as required by the TTCA as well as the city’s charter. The trial court granted the city’s motion, and Wilson appealed.

The city’s charter mandates that written notice of a claim must be given within 90 days of the incident. Wilson attempted to overcome the city’s motion by submitting a letter expressing his intent to file a claim, a police report, and various pieces of evidence he claimed showed the city had actual notice of the incident, which the appellate court examined. The court stressed that for the city to have actual notice, it must have subjective awareness of its potential culpability. Ultimately, evidence submitted by Wilson was deemed insufficient to establish actual notice as it did not suggest the city was at fault. Wilson’s argument that the city had actual knowledge due to the involvement of its employees and the resulting damages and the fact that city employees knew he was injured was unconvincing, as the accident report charged Wilson with traffic violations rather than attributing fault to the city’s fire truck driver. Consequently, the appellate court affirmed the trial court’s judgment, dismissing Wilson’s lawsuit.

Note:  Included opinions are from October 1, 2023, through October 31, 2023.

KP-446 (Hotel Occupancy Tax): Local Government Code chapter 306 authorizes certain municipalities to create a park board and gives such boards certain powers and responsibilities. While a home-rule municipality has the full power of self-government, it may not impose measures on a park board that conflict with state law.

Because the Legislature has not spoken to the issue of removal in chapter 306, a court would likely find the chapter does not preempt a municipal ordinance removing a park or facility from the park board’s management and control.

Tax Code section 351.105 allows eligible coastal municipalities to contract for a park board to use a portion of the hotel occupancy tax for certain statutory purposes without further authorization beyond the contract. The extent to which a municipality may exercise control over the use of hotel occupancy tax funds allocated under section 351.105 will be determined by the provisions of the contract required by subsection 351.105(f)(1).

KP-449 (Nepotism): A commissioners court has implied authority to employ persons necessary to carry out county business. A commissioners court may, through official action, delegate to the county judge its implied authority to employ persons.

A court would likely conclude that a county judge who is delegated the commissioners court’s implied authority to employ persons is prohibited by the anti-nepotism provision in Government Code section 573.041 from appointing the spouse of a county commissioner to a paid county position.

Pursuant to Government Code section 573.083, a public official who makes, confirms, or votes for an appointment or confirmation of an ineligible individual or who approves an account or authorizes the drawing of a warrant or order to pay the individual’s salary potentially commits a misdemeanor involving official misconduct.

Save the Date: 2024 Riley Fletcher Basic Municipal Law Seminar 

The 2024 Riley Fletcher Basic Municipal Law Seminar will take place on February 8-9 in Austin.  More details coming soon! 

TCAA Paralegal Program 

The Texas City Attorneys Association (TCAA) is excited to offer its second webinar in its Paralegal Program. This webinar will cover municipal ethics and will take place on Tuesday, November 7, 2023, from 12:00 p.m. to 1:00 p.m. This course has been approved for 1 hour of CLE credit by the State Bar of Texas Paralegal Division. The course is free for TCAA members and $40 for nonmembers.  

Click here to register. Please email Miguel Martinez at miguel@tml.org for questions. 

2023 TCAA Fall Conference Business Meeting

At the October 5, 2023 TCAA Fall Conference, TCAA membership, took the following actions:

• The membership, by a majority vote,  amended the TCAA Constitution.  The 2023 amendments can be found here.
• The membership elected the 2023-2024 TCAA Board of Directors.  A list of the TCAA Board of Directors can be found here.

Volunteer Opportunity 

The YMCA Texas Youth and Government Program allows high school participants to show off their knowledge through legislative sessions, mock trials, media publications, and elections held during the District (Nov. 4, 11, or 18, 2023, depending on location) and State (Feb. 1-4, 2024) Conferences in Austin. The judicial section depends on practicing attorneys and legal staff to judge student performances on mock trial and moot court teams. Interested individuals can find links to fill out a volunteer interest form for the various district events and the State Conferences here: https://ymcatexasyg.org/get-involved/volunteer/.

TCAA Online Membership Directory 

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here. 

IMLA Membership 

Membership with IMLA doesn’t just mean discounts at their events. It’s much more than that. Click here to view a quick video about IMLA membership.  

Continuing Legal Education 

2023 Summer Conference 

This TCAA online seminar is 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 this seminar, please visit tcaaonlineseminars.org. (Use the case-sensitive password “FreeCLE” to gain access to the sessions.)

Note: Included cases are from September 1, 2023, through September 30, 2023. 

Civil Rights: Guerra v. Castillo, No. 22-40196, 2023 WL 5764278 (5th Cir. Sept. 7, 2023). Guerra, a sergeant at the City of Alamo police department, sued the city’s former Chief of Police, Baudelio Castillo, the city, and other officers, following a series of events that led to Guerra’s termination and arrest on theft charges. The charges against Guerra were eventually dismissed on May 2, 2019, for lack of evidence, and Guerra filed a lawsuit under 42 U.S.C. § 1983, claiming violations of his Fourth and First Amendment rights and citing malicious prosecution and false arrest against Castillo. The lawsuit also implicated the city under a Monell claim, citing Castillo and the City Manager as the required “policymakers.” The district court granted motions to dismiss filed by the city and other officers. One of Castillo’s motions to dismiss was denied while another was granted due to qualified immunity, with the court finding that Guerra’s claims did not overcome the immunity and other established legal precedents. Guerra appealed the district court’s dismissal orders. 

The court focused first on Guerra’s false arrest claim against Castillo under the backdrop of Castillo’s qualified immunity defense. Guerra alleged that Castillo had orchestrated a conspiracy to file false affidavits, manipulating the criminal justice system to unjustly target him in a series of incidents spanning 2018 and 2019. This accusation hinges on the violation of Guerra’s Fourth Amendment right to be free from false arrests. The court held that Castillo’s deliberate perpetuation of false affidavits and his cognizance of the lack of probable cause in Guerra’s arrest violated established legal principles and ruled against granting Castillo qualified immunity. Consequently, the court reversed the previous dismissal of Guerra’s claim against Castillo and remanded the case to the trial court for further proceedings. 

Guerra also argued that Castillo should be held accountable for malicious prosecution under § 1983; however, the district court dismissed this argument, emphasizing that the current jurisprudence in the Fifth Circuit did not recognize a constitutional right to be protected from malicious prosecution at the time of these incidents. The appellate court agreed and affirmed the district’s dismissal of Guerra’s malicious prosecution claims. Additionally, the court affirmed the dismissal of Guerra’s First Amendment claims against Castillo for lack of sufficient evidence. 

Finally, Guerra asserted a claim against the city under § 1983 based on the Monell standard. According to this standard, to establish municipal liability under § 1983, three elements must be established: (1) the existence of a policymaker, (2) an official policy, and (3) a constitutional rights violation directly influenced by said policy or custom. Guerra’s complaint names Castillo and the City Manager as policymakers, contending that the city granted unrestrained authority to Chief Castillo, resulting in consistent due process violations under the Fourth Amendment. The city charter, however, rests policy-making authority with the Board of Commissioners, not with the Police Chief or City Manager. Despite Guerra highlighting sections of the city charter that indicate a potential delegation of authority to other individuals, including the Police Chief, the court found that Guerra failed to convincingly demonstrate that Castillo or the City Manager had the level of policy-making authority required. 

Ultimately, the judgment reversed the district court’s dismissal of Guerra’s Fourth Amendment false arrest claim against Castillo, mandating further proceedings, while affirming all other aspects of the district court’s judgment. 

Civil Rights: Frank v. Parnell, No. 22-30408, 2023 WL 5814938 (5th Cir. Sept. 8, 2023). In October 2017, Armando Frank parked his tractor in a Walmart parking lot before being approached by Avoyelles sheriff’s deputies and, later, a Marksville police officer. The officers indicated Frank had an outstanding arrest warrant and was going to be taken to the police station. During the encounter Frank had complied with the officers’ requests, but when officers declined to show Frank the arrest warrant at the scene, he resisted. This led to Frank being tased multiple times, placed in a chokehold, and rendered unconscious. Paramedics were called and attempted lifesaving measures, but Frank was later pronounced dead as a result of his injuries.  

Frank’s family filed suit against the officers under 42 U.S.C. § 1983, claiming the officers used excessive force. In turn, the officers claimed qualified immunity and moved for summary judgment. The district court granted the officers’ motion for summary judgment, and Frank’s family appealed.  

The Fifth Circuit, applying the Graham factors for determining whether the force was reasonable, concluded that: (1) Frank posed no immediate threat to the officers’ or public’s safety because he was unarmed, had no ability to evade arrest, and was disabled; (2) officers made no attempt to deescalate or use lesser force options before quickly resorting to a violent response; (3) the severity of the crimes associated with the outstanding warrant were not for violent crimes; and (4) there was a factual dispute about whether Frank was resisting arrest. The appellate court further determined that a jury could conclude the officers used excessive force and had reasonable warning that their conduct violated Frank’s clearly established Fourth Amendment rights. For those reasons, the court vacated the district court’s grant of summary judgment and remanded the case for further proceedings.  

Civil Rights: Walton v. City of Verona, No. 22-60231, 2023 WL 5946152 (5th Cir. Sept. 13, 2023).  This case stems from a drive-by shooting in which the shooter, Latavious Bettes, shot and killed Annie Walton after being suspected by the Verona Police Department for his involvement in prior shooting instances. Following her death, Walton’s family filed suit against the city of Verona and the police chief, claiming abuse of executive power and state-created danger under 42 U.S.C. § 1983, as well as additional claims under the Mississippi Tort Claims Act (MTCA). The city and police chief claimed sovereign and qualified immunity and moved for summary judgment. Initially, the district court granted the city’s and the police chief’s motion for summary judgment reasoning that: (1) the Fifth Circuit had never recognized a claim for state-created-danger; (2) the police chief’s actions did not “shock the conscience” in a manner to establish liability under a claim for abuse of executive power; and (3) there was no evidence the police chief acted with reckless disregard. However, after the Waltons filed a motion to reconsider, the district court granted the motion in part and denied the motion in part. The district court declined to revise its prior ruling as to the § 1983 claims, but as to the claims under the MTCA, it determined that the city was not entitled to sovereign immunity because a genuine dispute of material fact existed relating to whether the police chief acted with reckless disregard in handling the shootings. Thereafter, the city appealed the district court’s order on the MTCA claims, and the Waltons cross-appealed the order dismissing the federal claims. 

The Fifth Circuit first addressed the issue of jurisdiction to hear the interlocutory appeals by the city and the Waltons. As the court explained, courts of appeals are limited to reviewing final decisions by the district court only. However, under the collateral-order doctrine, the court may review the denial of claims of qualified immunity but not interlocutory orders granting qualified immunity. In this case, the district court held that because the Waltons did not show the police chief violated a constitutional right, he was entitled to qualified immunity and the city was, therefore, entitled to sovereign immunity as to the federal claims. Reaching this conclusion, the court dismissed the Waltons’ cross-appeal and proceeded to review the city’s appeal. In doing so, the court reversed the district court’s order and rendered summary judgment in the city’s favor. The appellate court held that the city was entitled to sovereign immunity under the MTCA because, under a theory of negligence, the Waltons failed to show the police chief owed a special duty to protect the victims from the shooter outside of the general duty to protect the public as a whole or that the police chief had a duty to control the shooter’s actions.  

Civil Rights: Robinson v. Midland Cnty., Tex., 80 F.4th 704 (5th Cir. 2023). While incarcerated at Midland County Jail, Savion Hall was treated by nurses employed by the jail’s medical services contractor, Soluta, for asthma. In June 2019, Hall began to experience serious breathing issues and requested medical assistance. The guard on duty, Daniel Stickel, was new to his position but sought advice from other guards and an on-duty nurse, all of whom confirmed protocol which involved Hall receiving breathing treatments every four hours. Hall was sent back to his cell. After another guard arrived to relieve Stickel, Hall was sent to the hospital. He died several days later as a result.   

During a Texas Rangers criminal investigation into Hall’s medical care, it was determined that nurses employed by Soluta had consistently left Hall to administer his own medication, failed to record Hall’s oxygen-saturation levels, and in some cases, even fabricated his vital signs and medical checks relating to his oxygen and breathing levels.

Hall’s family filed suit against the county and Stickel for deliberate indifference to medical needs under 42 U.S.C. § 1983. In turn, the county and Stickel filed a motion for judgment on the pleadings. The district court subsequently dismissed the suits for failure to state a claim upon which relief could be granted under Federal Rules of Civil Procedure, Rule 12(b)(6). Hall’s family appealed.  

On appeal, the Fifth Circuit affirmed the lower court concluding that: (1) Hall’s family failed to establish that the county had any actual knowledge of a pattern or policy to deprive Hall of adequate medical care and thus could not be held liable based on the actions of the Soluta nurses; and (2) Stickel’s actions did not rise to the level of deliberate indifference where Stickel ensured Hall had access to his inhaler, confirmed Hall’s prescribed course of medical treatment for his asthma, and informed his superiors and medical staff about Hall’s situation. 

Procurement: United States ex rel. Miniex v. Houston Hous. Auth., No. 21-20435, 2023 WL 6174416 (5th Cir. Sept. 22, 2023).  Karen Miniex, former Vice President, General Counsel, and Director of Procurement for the Houston Housing Authority (HHA) filed a qui tam suit under the False Claims Act against the city of Houston, HHA, and later, through an amended complaint, five of its property management companies for procurement violations related to the hiring and management of contractors and services under 31 U.S.C. § 3729(a)(1)(A), (a)(1)(B), and (a)(1)(G). She alleged the city of Houston was vicariously liable for the fraudulent conduct of HHA. Before the suit was commenced, the U.S. Department of Housing and Urban Development (HUD) completed its audit of HHA concluding that HHA failed to conduct federal requirements with regard to obtaining cost estimates prior to procuring contractors and services.  

HHA, the city, and the property management companies filed motions to dismiss the case, and the district court granted their motions based on: (1) the government action bar under 31 U.S.C. § 3730(e)(3), (2) Miniex’s failure to plead fraud with particularity under Federal Rules of Civil Procedure, Rule 9(b); and (3) her failure to state a claim under Rule 12(b)(6). Thereafter, Miniex moved for reconsideration and for leave to amend her complaint for a fourth time. After the court denied both motions, Miniex appealed.  

On appeal, the Fifth Circuit affirmed the district court’s dismissal of the claims against the city and property management companies but reversed the dismissal of the claims against HHA. With respect to the claims against HHA, the court reasoned that: (1) the HUD audit was not a civil action suit or an administrative civil money penalty proceeding to which the government action bar would apply; (2) because Miniex sufficiently outlined the identity of the person who made false representations and the time, place, and contents of the misrepresentations, she satisfied Rule 9(b); and (3) she also alleged sufficient facts to survive a 12(b)(6) motion to dismiss where she claimed HHA submitted false claims to HUD, certified future compliance with procurement regulations, violated those regulations, and provided the HUD audit indicating HHA did not comply with cost-estimate regulations to which HUD sought repayment.   

As for Miniex’s claims against the city, the Fifth Circuit affirmed the lower court holding that Miniex failed to establish that the city was vicariously liable under an agency theory where the pleadings did not show HHA was acting with actual or apparent authority. 

The appellate court further upheld the lower court’s denial of Miniex’s motion to amend, finding no abuse of discretion where she had already amended her complaint three times. 

Note: Included cases are from September 1, 2023, through September 30, 2023. 

Tort Claims Act: Ferebee v. Law Office of Frank Powell, No. 01-22-00681-CV, 2023 WL 5918110 (Tex. App.—Houston [1st Dist.] Sept. 12, 2023) (mem. op. on re’hg.). Powell filed a motion for rehearing after the appellate court issued an opinion on his case against the City of Shenandoah for slander. Among other things, Powell alleged that Ferebee, the city attorney, made defamatory statements about him at a city council meeting.  Ferebee filed a motion to dismiss under the Texas Tort Claims Act (TTCA), arguing that because Powell’s pleadings affirmatively demonstrated that Ferebee was acting within the scope of his employment and the lawsuit could have been brought against the city, Ferebee was entitled to dismissal of the claims against him under the TTCA’s election-of-remedies provision.  

The appellate court reversed the trial court, holding that Powell’s pleadings affirmatively demonstrated that the city officials, including Ferebee, who were defendants in the original suit were acting within the scope of their employment by making the statements during and after a city council meeting. Powell requested rehearing and the appellate court granted it. On rehearing, the appellate court reversed the trial court, again holding that Powell’s pleadings had affirmatively demonstrated that Ferebee was acting within the scope of his employment at the time he made the allegedly defamatory statement.   

Public Information Act: Johnson v. Bastrop Cent. Appraisal Dist., No. 07-23-00173-CV, 2023 WL 6389411 (Tex. App.—Amarillo Sept. 29, 2023) (mem. op.). Johnson requested records from the appraisal district. The appraisal district either failed to provide the information or notify Johnson it was requesting an attorney general opinion and Johnson filed a writ of mandamus, which the trial court denied. The appellate court withdrew its opinion from August 2023 and substituted this one.  

In affirming the trial court’s denial of the plaintiff’s petition for writ of mandamus, the appellate court found that: (1) the plaintiff failed to establish that he requested “public information” from the appraisal district and instead, he requested specific answers to general inquiries; and (2) even accepting the factual allegations in the plaintiff’s petition as true, the petition did not present a justiciable controversy between the parties. 

Delinquent Tax Collection: Rodriguez v. City of El Paso, No. 08-23-00004-CV, 2023 WL 6319337 (Tex. App.—El Paso Sept. 28, 2023) (mem. op.). The City of El Paso sued Eldon and Maria Rodriguez in October 2020 for unpaid property taxes from 2018 and 2019 and any other year taxes that became overdue during the case’s duration. In September 2021, while the city’s case was still pending, the defendants initiated a separate lawsuit to contest the valuation of their property by the El Paso Central Appraisal District for 2020 and 2021. This move halted the city’s ongoing tax collection case. The city intervened in the defendants’ valuation case, challenging the court’s right to hear it. The court sided with the city and dismissed the defendants’ valuation challenge. In July 2022, the city resumed its tax delinquency case, now including taxes from 2020 and 2021 which had also become overdue. The defendants argued that they had paid the 2018 and 2019 taxes and that their property was uninhabitable and worthless in 2020 and 2021. They provided a partial payment receipt and other supporting documents. While the city conceded the receipt of payment, they clarified that the provided check bounced due to insufficient funds. Ultimately, the trial court granted the city’s motion for summary judgment, ordering payment of unpaid taxes for 2018-2021 and authorizing the seizure of the property to cover the debt. 

Defendants appealed the trial court’s ruling, asserting that the city and county appraisal district wrongly denied their 2018 and 2019 tax payments and raised issues related to tax notifications and property valuation, claiming genuine material fact issues that should prevent a summary judgment in the city’s favor. Reviewing the record, the appellate court held that the city stated a prima facie case for a suit to collect delinquent taxes, which shifted the burden to the defendants to show that they have paid all taxes, penalties, and interest that would be due or that there is another defense. The defendants raised five issues against the city, including payment, lack of notice, overvaluation of the property, and two claims related to rejected protests. The court rejected each of defendants’ arguments in turn and affirmed the trial court’s judgment. 

Employment: Moliere v. City of Buffalo, No. 10-22-00391-CV, 2023 WL 6307992 (Tex. App.—Waco Sept. 28, 2023). Gregory Moliere, a City of Buffalo Police Department police officer, violated city policy when he engaged in a high-speed chase with a civilian ride-along in his police vehicle.  Subsequently, the Chief of Police issued Moliere a written reprimand, which was placed in his personnel file.  Moliere did not appeal the reprimand, and the police chief, in an affidavit, considered the disciplinary action resolved. A few weeks later, the city council voted to terminate Moliere’s employment as a police officer with the city.  

Moliere filed suit against the city and the mayor, seeking declarations that the city council lacked authority as a Type A general-law municipality to terminate his employment and that the termination of his employment violated the city’s policies. The city and the mayor filed a joint plea to the jurisdiction and motion for summary judgment, asserting governmental immunity under the Uniform Declaratory Judgements Act and that the city had the authority to terminate Moliere’s employment. The trial court granted the plea.  Moliere appealed. 

The court of appeals reversed and remanded, concluding that a fact issue exists regarding the authority of the city council to terminate Moliere’s employment as a police officer under Section 341.001(a) of the Local Government Code and the city employee manual.  

Mediation Procedure: In re City of McAllen, No. 13-23-00370-CV, 2023 WL 6065087 (Tex. App.—Corpus Christi–Edinburg Sept. 18, 2023). The trial court ordered the mayor and a councilmember of the City of McAllen to personally attend mediation in an ongoing inverse condemnation suit. The city appealed the order. The appellate court reversed, holding that while the trial court does have the authority to require parties to send representatives with full authority to settle the case, it does not have the authority to choose which representatives a party must attend.   

2023 TCAA Fall Conference in Dallas

The Texas City Attorneys Association (TCAA) Fall Conference will be held in conjunction with the TML Annual Conference and Exhibition on October 5 at the Kay Bailey Hutchison Convention Center in Dallas.

Topics include:

• Employer Drug Testing
• Training Staff to Deal with Uncivil People in a Civil Manner
• Preparing for Mass Gatherings: The City of Fredericksburg and the Total Eclipse
• Think It Over: Dealing with Fiber Companies that Want to Use Your City’s Right-of-Way
• AIE, AIE, AIE, and AI: What Special Issues Does Artificial Intelligence Pose for Employers and Attorneys?
• Recent Federal Cases of Interest
• The Nuts and Bolts of a SOAH-Contested Case Hearing (including Virtual Hearings)
• Procurement Disputes: Preventing, Managing, and Litigating
• Ethics: Protecting the Attorney Client Privilege with In-House Counsel

Click here for information about registration and housing. Note: The schedule for the TCAA program is under “Affiliate Programs,” and most attorneys who will not be attending the entire TML Annual Conference and Exhibition will want to choose the “one-day registration” option, starting at $250.

District Court Ruled HB 2127 Unconstitutional

On August 30, a Travis County district judge declared that H.B. 2127, the Texas Regulatory Consistency Act, is unconstitutional. H.B. 2127, among other things, prohibits home rule cities from adopting or enforcing an ordinance in a field of regulation occupied by eight specific codes unless expressly authorized. Following the bill’s passage, the City of Houston—later joined by the cities of San Antonio and El Paso as intervenors—filed a lawsuit in Travis County to have H.B. 2127 declared unconstitutional.

After a two-hour hearing and arguments from both sides, Travis County District Court Judge Maya Guerra Gamble granted Houston’s Motion for Summary Judgment and denied the State’s Motion to Dismiss. Further, the court declared H.B. 2127 to be unconstitutional in its entirety. The court’s final judgment can be accessed here.

While the ruling represents an encouraging first step for the preservation of constitutional home rule authority in Texas and a first step victory for those citizens who believe in local control, it marks just the beginning of the legal wrangling over the new law. The state already appealed the ruling to the Austin Court of Appeals.

Even with the ruling, H.B. 2127 technically went into effect on September 1.

S.B. 2 Tax Rate Setting Resources

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

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 at their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2022 Fall Conference and 2023 Summer Conference

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

Note: Included cases are from August 11, 2023, through August 31, 2023.

Takings, Immunity: St. Maron Properties, L.L.C. v. City of Houston, No. 22-20019, 2023 WL 5346633 (5th Cir. Aug. 21, 2023). The plaintiffs owned property (the “Property”) in the City of Houston that had previously been used by the city as a dumping ground for debris and construction material. As a result, the land was elevated, and the ground was compacted and unable to soak up rainwater. When it would rain, water from the property would flow into the backyards homes in a neighboring subdivision. After years of neighborhood complaints, the city took action to remediate the drainage issues, ultimately suing the Property’s owners for injunctive relief on behalf of the neighbors. The city obtained a permanent injunction which, among other things, ordered the Property’s owners to remediate the flooding issues in the neighborhood, which, according to the opinion, would have required the Property’s owners to trespass onto their neighbor’s property. After the Property’s owners failed to fix the issues, the city entered the Property to attempt to remediate the watershed issues there. Allegedly, the city’s actions to try to remediate the issues have not fixed the watershed issues, have resulted in repeated flooding and vermin infestations of the Property, and deprived the landowners of their property. In turn, the owners of the Property sued the city, accusing Houston’s mayor, city council, and city attorney of orchestrating a plan to use their vacant lots for dumping construction materials, causing frequent flooding. This, they allege, was done without their consent, compensation, or due process. Their case against the city invokes several constitutional grounds including the Takings Clause, the Due Process Clause, and the Equal Protection Clause, along with state law tort and statutory claims. Initially, the district court dismissed both the state law claims – citing sovereign immunity – and the federal § 1983 claims, stating they did not meet the criteria for municipal liability as per Monell v. Department of Social Services, a precedential case, and the owners appealed.

Federal Claims

Section 1983 serves as a mechanism to vindicate federal rights, allowing individuals to hold cities accountable in case of violations of rights secured by the constitution.

The Monell doctrine is applied to determine the liability of the city. To make a claim under this doctrine, the plaintiffs need to prove: (1) the existence of an official policy, (2) created by the municipal policymaker, (3) which was the driving force behind the constitutional violation. In this case, the court acknowledged that the criteria for an official policy as defined by Monell were met because the decisions made by the city were clear acts of government policy. The plaintiffs present various instances demonstrating that the mayor and city council actively and deliberately chose a particular course of action, thus establishing an official policy. Moreover, they argue that the mayor and city council were the final policymakers in this matter, as defined by the city charter, and were responsible for directing and endorsing the actions taken by the city departments. Further, the plaintiffs claimed that there was a direct causal link between the municipal policy and the alleged violations of constitutional rights, emphasizing the infringement of rights under the Fifth and Fourteenth Amendments. The Fifth Amendment claim is based on the unlawful taking of their properties without just compensation, whereas the Fourteenth Amendment claim focuses on the violation of procedural due process and equal protection rights. They argued that the city used an unjust injunction to intrude and alter their properties, depriving the Property owners of their due process rights by failing to notify them or allow them an opportunity to defend themselves against the injunction.

Consequently, the Fifth Circuit concludes that the plaintiffs have adequately detailed each element required for a Monell claim, indicating that the district court made an error in dismissing the § 1983 claims previously.

State Claims:

Sovereign immunity generally protects cities from lawsuits seeking monetary damages. Whether immunity attaches can be influenced by whether the city was acting in a governmental or proprietary capacity, with the latter generally not protected by immunity. Generally speaking, a city’s proprietary functions are those conducted in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government, while its government functions are in the performance of purely governmental matters solely for the public benefit. The plaintiffs contend that Houston was acting in a proprietary capacity when it was representing the neighborhood group. However, the Texas Tort Claims Act (TTCA) clearly lists “sanitary and storm sewers” as governmental functions, which the court recognizes as decisive in classifying the actions of the municipality as governmental, thereby negating the plaintiffs’ argument for a waiver of immunity. Alternatively, the plaintiffs argue that Houston waived immunity by involving itself in litigation to assert claims for monetary damages. Yet, the cited precedent establishes only a narrow exception to sovereign immunity for counter-claims to negligence suits filed by government entities, and the court held that this narrow exception did not apply in this case. Furthermore, the court affirmed the lower court’s decision to dismiss claims for negligence and other intentional torts (trespass and civil conspiracy) under the TTCA, as the TTCA only provides limited waivers which do not encompass the types of claims brought forth by the plaintiffs.

In conclusion, the district court’s dismissal of the state tort and statutory claims against Houston was affirmed, but the dismissal of the § 1983 claims against Houston was reversed and remanded for further consideration.

Note: Included cases are from August 11, 2023, through August 31, 2023.

Tort Claims Act: City of Houston v. Ledesma, No. 01-22-00377-CV, 2023 WL 5535668 (Tex. App.—Houston [1st Dist.] Aug. 29, 2023) (mem. op.). Ledesma sued the City of Houston after she was allegedly injured in a collision with a Houston Police Department vehicle driven by Suarez, who was off-duty and travelling to her second job but was wearing an HPD uniform. The city filed a motion under the Texas Tort Claims Act’s (TTCA) election-of-remedies provision to dismiss Suarez from the suit, which the trial court granted, and then the city filed a motion for summary judgment claiming immunity under the TTCA, arguing that Suarez was not acting in the scope of her employment at the time of the collision. The trial court granted the motion for summary judgment and Ledesma appealed.

The appellate court reversed the grant of the motion for summary judgment and remanded to the trial court, holding that by moving to dismiss the claims against Suarez under the TTCA’s election-of-remedies provision, the city had judicially admitted that Suarez was acting in the scope of her employment. The city filed a motion for en banc rehearing which was denied and a petition to the Supreme Court which was also denied. The city then filed a plea to the jurisdiction in the trial court, the trial court denied the plea, and the city appealed.

The appellate court affirmed, holding that its prior decision had addressed all aspects of the city’s arguments concerning the judicial admission issue and so the law-of-the-case doctrine applied. The appellate court denied Ledesma’s request for sanctions against the city, holding that although it was a close question whether the city’s appeals was frivolous, sanctions were not appropriate under the circumstances.

Tort Claims Act: Wheeler v. Law Office of Frank Powell, No. 01-22-00479-CV, 2023 WL 5535670 (Tex. App.—Houston [1st Dist.] Aug. 29, 2023) (mem. op.). The Law Office of Frank Powell sued five employees of the city of Shenandoah alleging defamation based on statements they made during and after a city council meeting, and sued one city employee for defamation based on statements she made on a social media platform. The city employees filed a motion to dismiss under the election-of-remedies provision of the Texas Tort Claims Act (TTCA), arguing that Powell’s pleadings affirmatively demonstrated they were acting within the scope of their employment when they made the statements and were therefore entitled to dismissal of the claims. The trial court denied the motion and the city employees appealed.

The appellate court reversed the trial court and rendered judgment dismissing the claims against the five city employees, holding that Powell’s pleadings affirmatively demonstrated they were acting within the scope of their employment by making the statements during and after a city council meeting. The appellate court remanded the claim against the final city employee, holding that a fact issue remained as to whether the statements made on the social media platform were made in the scope of that employee’s employment.

Tort Claims Act: City of Houston v. Wilson, No. 01-22-00796-CV, 2023 WL 5615817 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.). Wilson sued the City of Houston after allegedly being injured in a vehicle collision with Williams, a city employee. The city filed a combined motion to dismiss and motion for summary judgment, claiming immunity under the Texas Tort Claims Act (TTCA) because the city had not received timely formal or actual notice of Wilson’s claims. The trial court denied the motion and the city appealed.

The appellate court reversed and rendered judgment dismissing the claims, holding that: (1) although Wilson’s claim letter included a date within the ninety day notice period required by the city charter, the letter was not sent in the mail until after the period expired, so the city did not receive timely formal notice of her claims; and (2) because there was no indication at the time of the collision that Wilson was injured and the existence of property damage to the vehicles does not constitute notice of a possible personal injury, the city did not have timely actual notice of Wilson’s claims.

Land Use/Tort Claims Act: Stone v. Harris County, No. 01-21-00384-CV, 2023 WL 5615812 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.). Stone sued the City of Houston and Margaret Brown in her official capacity as director of the city’s planning department, alleging the planning commission had violated Chapter 212, Local Government Code, by approving a replat that created problems on her property. Stone argued that the city’s immunity was waived because Brown’s approval of the replat was an ultra vires act. The city filed a plea to the jurisdiction alleging immunity under the Texas Tort Claims Act which the trial court granted, and Stone appealed.

The appellate court affirmed, holding that the city was immune from suit, and that Brown’s ultra vires claim failed because while a ministerial duty exists to approve a conforming plat, there is no corresponding ministerial duty to deny a nonconforming plat. Therefore, Brown had not acted without clear authority nor failed to perform a purely ministerial act as would have been required to support a claim that a government official acted ultra vires.

Civil Service Act: City of Houston v. Spann, No. 01-22-00848-CV, 2023 WL 5615801 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.). Fire fighter Spann appealed to the Firefighters’ and Police Officers’ Civil Service Commission of the City of Houston to reverse a disciplinary action taken against him by the fire department. The commission upheld the disciplinary action and Spann appealed to the district court. Spann filed a motion for summary judgment, arguing that because the commission did not provide him the required 15 days’ notice of the hearing, the commission’s order upholding the disciplinary action was void. The district court granted the motion and the commission appealed.

The appellate court affirmed, holding that: (1) the Code Construction Act’s computation of time rules applied; (2) additional days of notice from previously scheduled and continued hearings could not be counted for the statutorily required notice; and (3) Spann was not required to show prejudice to be entitled to summary judgment because he did not receive the full 15 days’ notice.

Jurisdiction: City of Kyle, et al., v. Lila Knight et al., No. 03-21-00378-CV, 2023 WL 5597360 (Tex. App.—Austin Aug. 30, 2023). This case stems from a development agreement between the city and three landowners for the development and voluntary annexation of 3,268.6 acres of land in Kyle. The individual plaintiffs in the case, Lila Knight, Timothy A. Kay, Helen Brown-Kay as well as Save Our Springs Alliance, Inc., (collectively “SOS”) sued the city of Kyle and city officials for, among other things: (1) acting ultra vires in adopting amendments to the city’s comprehensive plan and transportation plan; (2) violating statutory and procedural rights granted to SOS under Chapter 211 of the Local Government Code; and (3) unconstitutionally contracting away the council’s legislative authority under the terms of the agreement. In response, the city filed a plea to the jurisdiction, a Rule 91a motion to dismiss, and a partial summary judgment motion. With respect to the above-mentioned claims, the trial court denied the city’s motions, and this interlocutory followed.

On appeal, the city argued that: (1) the trial court erred in denying the city’s plea to the jurisdiction with respect to SOS’s claim that the city acted ultra vires in approving the development agreement; and (2) SOS lacked standing to bring the claims. On the standing claim, the city relied on the court of appeals’ decision in Save our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App.—Austin, 2010) to support its argument that, like in Dripping Springs, SOS, Inc. lacked associational standing. However, the court distinguished the cases, explaining that unlike in Dripping Springs, the evidence in the record showed that SOS, Inc.’s members owned land near, and in some cases, obtained their groundwater through wells adjacent to and near the property that would “very likely increase their exposure to water contamination and pollution.”  Addressing individual standing, the court of appeals concluded that SOS pleaded sufficient facts showing the individuals also lived close to the property to be developed, and one of the individuals, Mr. Kay, served on the planning and zoning committee and would no longer have discretion over voting decisions because of specific provisions in the development agreement.

The court of appeals also concluded that SOS pleaded sufficient facts showing city officials acted without legal authority in approving the development agreement. Specifically, the agreement included provisions adopting specific amendments to the city’s comprehensive and transportation plans in violation of procedural, notice, and hearing requirements under the Open Meeting Act and the city’s charter. For those reasons, the court of appeals affirmed the trial court’s order denying the city’s motions.

Emergency Orders: Galovelho LLC v. Abbott, No. 05-21-00965-CV, 2023 WL 5542621 (Tex. App.—Dallas Aug. 29, 2023). In March 2020, Galovelho, LLC operated a restaurant in Frisco. During this time when Covid-19 was spreading throughout the state, the governor, Collin County judge, and city of Frisco issued emergency orders that encouraged patrons to avoid eating or drinking at restaurants and bars and, in some cases, limited restaurants to serving patrons via take-out, drive-through, or delivery only. As a result of the emergency orders, Galovelho alleged its restaurant suffered, and it sued the governor, county, and city. After a hearing on a joint plea to the jurisdiction by the governor, county, and city, the trial court determined that: (1) Galovelho’s claims were barred by sovereign or governmental immunity and that it lacked standing; (2) it did not have a viable takings claim; and (3) its due process and equal protection claims were moot. Galovelho appealed, but the court of appeals ultimately affirmed the trial court’s decision.

The court of appeals reasoned that, with regard to the takings claim, the effect of the emergency orders was neither a categorical (per se) taking nor a taking under the factors outlined in the Supreme Court decision Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the emergency orders were temporary and did not destroy all economic value in Galovelho’s property. In addition, the court concluded that the character of the governmental action (the third factor in Penn Central) was not akin to a physical invasion but instead an example of a regulation that “adjusts the benefits and burdens of economic life to promote the common good.”

Addressing Galovelho’s equal protection and due process claims, the court agreed that the recission of the emergency orders rendered Galovelho’s claims moot. Further, the court disagreed that the exception to the mootness doctrine (for an issue “capable of repetition, yet evading review”) applied to the issuance of the emergency orders in this manner because a mere theoretical possibility that Galovelho may be subjected to similar restrictions in the future was insufficient to claim this exception.

Extraterritorial Jurisdiction: Elliott v. City of Coll. Station, No. 06-22-00078-CV, 2023 WL 5617344 (Tex. App.—Texarkana Aug. 31, 2023). Two plaintiffs sued the city, the mayor, and the city manager under Article I Section 2, of the Texas Constitution to challenge the concept of extraterritorial jurisdiction (ETJ), arguing that unless residents of the ETJ can vote, any city regulation in the ETJ is void. The city and its officials filed a plea to the jurisdiction, asserting that the residents lacked standing, their claims were not ripe, and that the suit presented a political question. The trial court granted the plea and the plaintiffs appealed.

The court of appeals discussed in-depth the nature of Texas cities and concluded that the plaintiffs’ challenge presents a political question, which the court may not address without violating the separation of powers of doctrine. Accordingly, the court of appeals upheld the trial court’s decision.

Open Meetings Act: In re City of Amarillo, No. 07-22-00341-CV, 2023 WL 5279473 (Tex. App.—Amarillo Aug. 16, 2023) (mem. op.). Voters in Amarillo defeated a bond proposition for expansion of the city’s civic center. In response, the city created a three-step plan: (1) create a tax increment reinvestment zone (TIRZ) to fund the improvements; (2) issue tax anticipation notes; and (3) issue 30-year refunding bonds in the future to refinance the debt. The plaintiffs sued seeking to void the ordinances creating the TIRZ and the anticipation notes based on alleged violations of the Open Meetings Act. The case went to bench trial where the court invalidated the ordinances and the anticipation notes and awarded attorneys’ fees.

On appeal, the appellate court found: (1) the district court possessed jurisdiction to hear the plaintiff’s Open Meetings Act claims; (2) the city’s notice regarding the ordinance issuing the anticipation notice failed to substantially comply with the Open Meetings Act because it failed to give the reader adequate notice of the action the city sought to take and therefore the notes were void; (3) the award of attorneys’ fees was appropriate; and (4) there was no basis for reversal on the plaintiff’s issue that the ordinance did not comply with Government Code section 1431.008(b) because it would not afford plaintiff greater relief than what he had already received. The appellate court affirmed the trial court’s judgment.

Public Information Act: Johnson v. Bastrop Cent. Appraisal Dist., No. 07-23-00173-CV, 2023 WL 5628653 (Tex. App.—Amarillo Aug. 30, 2023) (mem. op.). Johnson requested records from the appraisal district. The appraisal district either failed to provide the information or notify Johnson it was requesting an attorney general opinion and Johnson filed a writ of mandamus, which the trial court denied. On appeal, the court found that the trial court did not abuse its discretion in denying the writ of mandamus.

Employment: Limuel, v. City of Austin, No. 08-23-00041-CV, 2023 WL 5761303 (Tex. App.—El Paso Sept. 6, 2023) (mem. op.). Alan Limuel was an employee in the Austin Resource Recovery Department. His tenure at the city was marked by various conflicts and corrective actions, which the city attributes to Limuel’s performance or behavioral issues, while Limuel claims they were instances of illegal retaliation. Limuel filed five discrimination charges with the Equal Employment Opportunity Commission (EEOC), alleging sexual harassment, discrimination, and retaliation and ultimately sued the city for retaliation and sexual harassment, representing himself in the action. After pretrial practice, including the dismissal of Limuel’s sexual harassment claim on summary judgment, there was a five-day jury trial on the merits of Limuel’s claims. At the conclusion of the trial, the jury affirmed some of Limuel’s claims, but awarded him zero damages related to emotional distress and other non-economic losses. Discontent with the outcome, Limuel sought to dismiss the jury’s damages verdict, arguing that there was no basis for the zero damages awarded. The trial court rejected his motion. Following this, Limuel moved for a new trial, which was also denied by the court, prompting him to appeal.

The appellate court took some time in the opinion to explain that the standards for pro se litigants who represent themselves in court without an attorney dictate that courts must interpret the pleadings of these litigants in a way that ensures they have a fair opportunity to present their case. This principle is grounded in the intention to prevent any miscarriage of justice due to a litigant’s lack of legal expertise or representation. However, these litigants must comply with procedural requirements. In his appeal, Limuel challenged a number of aspects of the city’s case, including rulings related to evidence, jury selection, disqualification of the city’s attorney, improper jury argument, post-trial motions, and overarching constitutional claims. For various reasons, each of Limuel’s arguments was overruled, and the trial court’s judgment was affirmed.

Land Use: City of Rusk, Texas, et al. v. 260 Office Park, Inc., et al., No. 12-22-00312-CV, 2023 WL 5663227 (Tex. App.—Tyler Aug. 31, 2023) (mem. op.). The Rusk Hotel in Rusk, Texas was being renovated and redeveloped. Once complete, the property was to be used for both commercial and residential uses. By September 2021, much of the work had been finished, and the city had issued a temporary certificate of occupancy for four of the second-floor residential units. Soon thereafter, the city enacted an ordinance which restricted residential use in the “Old Town Center” district, where the Rusk Hotel is located, and based on this ordinance, the city took steps to halt the redevelopment work at the hotel. The property owners filed a lawsuit in June 2022 alleging the city violated certain legal requirements in the passage of the ordinance and interfered with their vested property rights. The city filed a plea to the jurisdiction, countering that aspects of the case were either not ripe or were moot, and that the plaintiffs have not exhausted all administrative remedies. The trial court denied the city’s plea to the jurisdiction, and the city appealed. In the opinion the court analyzed alleged violations of state law related to local zoning ordinances, vesting issues, and the Texas Open Meetings Act (TOMA). After analyzing whether certain aspects of the property owners’ case were moot or ripe, the court ultimately sustained the trial court’s denial of the plea to the jurisdiction in part and overruled it in part. The court found that the owners had standing to pursue their TOMA and zoning claims, but that their vesting claims failed for lack of ripeness. Ultimately, the case was remanded back the trial court for further proceedings.

Tort Claims Act: City of Huntsville v. Valentine, No. 13-22-00528-CV, 2023 WL 5282954 (Tex. App.—Corpus Christi–Edinburg Aug. 17, 2023) (mem. op.).  The Valentines sued the City of Huntsville alleging that the city negligently issued a building permit for construction that ended up flooding the Valentines’ property with stormwater runoff. The city filed a plea to the jurisdiction claiming governmental immunity and the trial court denied the plea. The city appealed.

The appellate court affirmed, holding that because issuance of a building permit is a proprietary rather than governmental function of a city, the Texas Tort Claims Act would have waived the city’s immunity only if the claim arose from property damage caused by the negligent operation of a motor vehicle.

Tort Claims Act: City of Houston v. Wilson, No. 14-22-00368-CV, 2023 WL 5368101 (Tex. App.—Houston [14th Dist.] Aug. 22, 2023) (mem. op.). Emmitt Wilson sued the City of Houston following a collision that occurred involving a city fire engine. Engine 43, being driven by Jason Carroll, was responding to a collision and needed to reverse due to heavy traffic. Wilson encountered Engine 43 at an intersection. Wilson, being behind the engine and seeing it reversing, also began reversing but had to stop to avoid hitting another vehicle. Engine 43 continued reversing and collided with Wilson’s vehicle. The city sought summary judgment, claiming Carroll was protected by official immunity as he was performing his discretionary duties in good faith at the time of the accident. Because of factual disputes between the parties, the trial court denied the city’s motion for summary judgment, resulting in this appeal.

Cites are generally immune from being held liable for an employee’s actions unless this immunity is waived. In the context of this case, a potential waiver of immunity is guided by the Texas Tort Claims Act, which stipulates that a governmental unit may be held liable for damage or injury caused by an employee’s wrongful act or negligence when operating a motor-driven vehicle, provided the employee would be personally liable according to Texas law. A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith. An action is considered discretionary if it necessitates personal deliberation, decision, and judgment, contrasted with ministerial acts which entail adhering to orders or performing a duty where the employee has no choice. The focus is on whether the employee was performing a discretionary function rather than the discretion involved in potentially wrongful acts during that function or the job description including discretionary duties. The court concluded that Carroll was indeed engaged in discretionary duties at the time of the incident, given the undisputed evidence that he was responding to an emergency and making several critical decisions while navigating to the accident site. Therefore, the appellate court held that the trial court erred in its finding that the city failed to definitively establish that Carroll was undertaking discretionary duties during the collision.

The court then moved on to analyze whether the driver acted in good faith while taking these discretionary decisions. The court outlines that good faith is to be determined based on an objective standard of what a “reasonably prudent fire engine operator” could have believed in similar circumstances, emphasizing that it is not about what any reasonable person would have done but instead focuses on the possible beliefs of a reasonable operator in that profession. The legal framework utilized mandates considering both the “need” and the “risk” aspects of the situation, encompassing factors such as the urgency of the situation, the potential for injury or loss of life, alternative courses of action, the potential for harm caused by the fire engine operator’s actions, and whether a reasonably prudent operator would have been aware of the risk of harm. After analyzing the facts, the court found that the city met its burden of proving conclusively that Carrol was acting in good faith at the time of the incident, citing the detailed account provided by Carrol in an affidavit, which clearly addressed both the need and risk sides of the legal balancing test.

Finally, the court analyzed whether Wilson had provided evidence sufficient to raise a question of fact challenging the city’s good faith evidence. While Wilson did provide an additional piece of evidence, the court concluded that it failed to rebut the city’s proof of good faith. Ultimately, the court decided to reverse the trial court’s decision and render a judgment dismissing Wilson’s action, effectively siding with the city and concluding that Carroll was protected by official immunity and acting in good faith at the time.

Tort Claims Act: City of Houston v. Gomez, No. 14-21-00761-CV, 2023 WL 5535824 (Tex. App.—Houston [14th Dist.] Aug. 29, 2023). On a cold and rainy Christmas Eve, Maria Christina Gomez was involved in a collision with a City of Houston police car driven by Officer Bobby Joe Simmons at an intersection in Houston. At the time, Simmons was responding to a robbery-in-progress call. Gomez sued the city alleging negligence, and the city filed a plea to the jurisdiction asserting governmental immunity. Conflicting testimony exists with regard to certain facts about the collision. According to Simmons, he was driving with his emergency lights activated but no siren and claimed to have been following the speed limit. Gomez disputed Simmons’s use of emergency lights. Ultimately, the trial court granted the plea to the jurisdiction dismissing the case, and Gomez appealed.

The appellate court at that time held that the city had not conclusively demonstrated that Simmons acted in good faith and that there were unresolved fact issues related to the emergency exception to waiver of immunity. The trial court’s decision was overruled, and the case was remanded for further proceedings. The lower court ultimately denied a supplemental plea filed by the city, leading to the instant appeal. In this appeal, the city raised two issues: (1) that the city established Simmons acted in good faith, and (2) that Gomez failed to raise a genuine issue of material fact regarding Simmons’s good faith.

Cities are generally protected from lawsuits by governmental immunity unless that immunity is waived. The Texas Tort Claims Act provides a waiver of governmental immunity for damage or injury caused by an employee’s negligent act during the scope of their employment, especially when it involves the use of a motor vehicle. The standard for evaluating official immunity hinges on the officer’s good faith and whether a “reasonably prudent officer” in similar circumstances might have acted the same way based on the information available at the time. This assessment considers the necessity of the officer’s response and the associated risks, evaluating the urgency and alternative actions available as well as the potential harm and likelihood of adverse outcomes. In this case, the city’s evidence failed to conclusively establish Simmons’s good faith, as the city’s position is based on a disputed fact concerning the use of emergency lights, which was a significant aspect influencing the needs and risk analysis. Given that the city did not definitively prove Simmons acted in good faith, the court upheld the trial court’s decision not to dismiss the case. Additionally, in order to reverse the court’s earlier opinion on the question of whether the emergency exception applied in this case, the city would have needed to demonstrate that the court’s earlier opinion was clearly erroneous. In the prior opinion, the court held that that Gomez, the plaintiff, successfully raised a fact issue defeating the application of the emergency exception to the waiver of governmental immunity. The court highlighted that because the city produced no new evidence to counter Gomez’s claim of recklessness by Simmons, the original decision of the court would stand.

Ultimately, the court overruled the city’s arguments on appeal and upheld the trial court’s judgment denying the plea to the jurisdiction, which essentially means that the case will continue in the trial court, with the city unable to claim governmental immunity at this time.

2023 TCAA Fall Conference in Dallas

The Texas City Attorneys Association (TCAA) Fall Conference will be held in conjunction with the TML Annual Conference and Exhibition on October 5 at the Kay Bailey Hutchison Convention Center in Dallas.

Topics include:

• Employer Drug Testing
• Training Staff to Deal with Uncivil People in a Civil Manner
• Preparing for Mass Gatherings: The City of Fredericksburg and the Total Eclipse
• Think It Over: Dealing with Fiber Companies that Want to Use Your City’s Right-of-Way
• AIE, AIE, AIE, and AI: What Special Issues Does Artificial Intelligence Pose for Employers and Attorneys?
• Recent Federal Cases of Interest 
• The Nuts and Bolts of a SOAH-Contested Case Hearing (including Virtual Hearings)
• Procurement Disputes: Preventing, Managing, and Litigating
• Ethics: Protecting the Attorney Client Privilege with In-House Counsel

Click here for information about registration and housing. Note: The schedule for the TCAA program is under “Affiliate Programs,” and most attorneys who will not be attending the entire TML Annual Conference and Exhibition will want to choose the “one-day registration” option, starting at $250.

TCAA to Fill Board Position on October 5, 2023

Those interested in applying for a place on the board of the Texas City Attorneys Association should fill out an application and return it via email to Evelyn Njuguna at evelyn@tml.org. Application forms are available here and under the “About TCAA” tab, “Board of Directors” section, on the TCAA website at https://texascityattorneys.org. Applications must be received by 5:00 p.m. on August 25, 2023.

City of Houston Files Lawsuit to Declare Preemption Legislation Unconstitutional

On July 3, the City of Houston filed a lawsuit in Travis County to have H.B. 2127, the so-called “Super Preemption” bill, declared unconstitutional. H.B. 2127, effective September 1, would prevent cities and counties from adopting or enforcing local regulations related to an activity located in a field of regulation occupied by state law in certain state codes. The Texas Municipal League’s post-session summary of H.B. 2127 can be read here. 

Among other things, the City of Houston argues that H.B. 2127 violates the home rule amendment of the Texas Constitution, is unconstitutionally vague, and impermissibly delegates the Texas Legislature’s policy-making authority to the courts. The city’s press release on the lawsuit can be accessed here. 

If you have questions, you may contact Darah Eckert with the City of Houston Legal Department at Darah.Eckert@houstontx.gov or (832) 393-6251.

The hearing on Houston’s motion for summary judgment is set for August 30 at 2 p.m.

S.B. 2 Tax Rate Setting Resources

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

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 at their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2022 Fall Conference and 2023 Summer Conference

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

Note: Included cases are from July 11, 2023, through August 10, 2023.

USERRA: Garcia-Ascanio v. Spring Indep. Sch. Dist., No. 22-20363, 74 F.4th 305 (5th Cir. July 17, 2023). This case stems from allegations of violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on alleged constructive discharge.

Garcia was employed as an Assistant Principal at Spring ISD. During his tenure at Spring ISD, he also served in the Army Reserve and took leave to fulfill his military duties.  Following complaints about him by parents, Spring ISD’s management personnel met with Garcia to discuss his performance and at the meeting asked Garcia about how he would manage his work responsibilities with his military responsibilities and that he needed to have a plan for ensuring his military duties did not negatively affect his co-workers. Soon after, Garcia was reassigned to oversee another grade level of students, but his job responsibilities stayed the same.  Following further complaints from parents, Garcia was written up related to his professionalism.  Thereafter, he was investigated on how he handled student discipline and was placed on “home duty.” Soon thereafter, the Spring ISD Board voted not renew his contract at the end of the school year. 

Garcia sued, alleging violations of his rights under USSERA.   A jury found that Garcia’s military status and his engaging in USERRA-protected activity was a motivating factor in his constructive discharge (Jury Questions 1-3), but also found that Spring ISD would have constructively discharged him even if it had not taken his military services and protected activity into account (Jury Questions 4 and 5).  Garcia moved to have the court disregard Jury Questions 4 and 5 arguing for the first time that the jury should not have been asked those questions because Spring ISD’s affirmative defense was not available in a constructive discharge context.  The court entered judgement for Spring ISD based on the jury’s answers to Questions 4 and 5, and Garcia appealed, alleging that  the “mixed motive defense”—meaning the employer’s affirmative defense that it would have taken the same action in the absence of an employee’s military status or protected activity—is “inapplicable” in a constructive discharge case because “there is an inherent disconnect between [the] mixed-motive defense and constructive discharge.”

The court of appeals affirmed the trial court’s ruling, finding that the text of USERRA clearly provides employers with a mixed-motive defense and provides no carve-out for constructive discharge claims.

Employment: January v. City of Huntsville, No. 22-20380, 2023 WL 4698905 (5th Cir. July 24, 2023). This case stems from a claim of disability discrimination based on alleged failure to reinstate or promote January, a former city firefighter.

Ten years ago, January, a City of Huntsville firefighter, had gall bladder surgery and thereafter suffered complications from the surgery. The city and its fire department accommodated him for his need for medication and treatment of the complications.  Not long after the surgery, he was caught asking his fellow employee for leftover prescription painkillers. He was placed on probation. Two years later, he submitted and then rescinded a letter of resignation. The fire department took him back but passed him over for open officer positions and declined to reinstate him to a trainer position he’d previously held. He met with city officials and accused the city of discriminating against him on the basis of his age and disability by not selecting him as an officer and removing him as a trainer.  He also made it clear that he was considering suing the city and was going to complain to the EEOC.

A month later he got into an alleged altercation with a city employee who suspected him of being intoxicated. He was repeatedly asked to take a drug test, and when he declined, he was placed on administrative leave. Following an investigation, his employment with the city was terminated.  January sued claiming discrimination under the Americans with Disabilities Act (ADA) and retaliation under the ADA, the Rehabilitation Act, and the Age Discrimination in Employment Act (ADEA). The court, over January’s request for a continuance, granted summary judgement for the city on all claims.  January appealed his denied continuance and the city’s summary judgement.

The court of appeals held that: (1) the trial court did not abuse its discretion in denying January’s motion for continuance; (2) the six-week time period between January’s protected activity and the city’s decision to fire him was sufficient to demonstrate causal connection required to support his retaliation claims; and (3) the decision to fire January for intoxication was not pretext for retaliation.

Small Cell Nodes: Crown Castle Fiber, L.L.C. v. City of Pasadena, Tex., No. 22-20454, 2023 WL 4994300 (5th Cir. Aug. 4, 2023). The issue in this case is whether the city’s small cell node regulations are preempted by federal law.

Castle Crown entered into a contract with T-Mobile to provide network “nodes” and “fiber” to transport T-Mobile’s voice and data signals through these nodes and fiber networks in the City of Pasadena. To build out a small cell network, Crown Castle must install the physical infrastructure, and alleges that it must have access to public rights-of-way to accomplish that task, which requires a permit from the city. The city adopted a design manual to comply with state law that requires new support poles for a network be spaced at least 300 feet from existing utility poles or other node support poles and prohibiting a network provider from installing above ground on an existing pole a network node and related equipment in a public right of way in a residential area. 

Crown Castle applied for a permit, and the city rejected its applications because they violated the spacing requirement.  Additionally, Crown Castle alleged that placing the required radio equipment underground in Pasadena is technologically impossible because of concerns with overheating and Pasadena’s regular flooding.  Crown Castle sued for declaratory and injunctive relief, alleging that the minimum spacing restrictions violated, and was preempted by, both the federal Telecommunications Act (FTA) and Texas law.

The court of appeals held that: (1) the FTA preemption claim presented a federal question; (2) Castle Crown was a “telecommunications provider” under FTA; (3) the action was ripe for adjudication; (4) the FTA preempted spacing and undergrounding requirements in the city’s small cell node regulations; (5) the FTA’s safe harbor provision was inapplicable; and (6) Caste Crown was entitled to a permanent injunction.

Note: Included cases are from July 11, 2023, through August 10, 2023.

Exhaustion: Drew v. City of Houston, No. 01-22-00212-CV, 2023 WL 4872979 (Tex. App.—Houston [1st Dist.] Aug. 1, 2023). Drew sued the City of Houston for sexual harassment, retaliation, and constructive discharge after a co-worker tried to kiss her and masturbated in front of her. The co-worker was placed on leave, Drew was reassigned, and several months later Drew resigned her position and filed a complaint with the EEOC. She filed suit against the city eight months later. The city filed a plea to the jurisdiction, claiming that Drew had not exhausted her administrative remedies with the EEOC because she filed her complaint more than 180 days after the incident occurred. The trial court granted the city’s plea based on the untimeliness of Drew’s complaint, and Drew appealed.

The appellate court affirmed, holding that: (1) the continuing violation doctrine did not apply because there was no evidence in the record to support Drew’s claim that the first incident was part of a series of harassment and retaliation incidents that continued into the period of time that would make her EEOC complaint timely; and (2) there was no evidence in the record to support Drew’s claim of constructive discharge. 

Tort Claims Act: City of Baytown v. Fernandes, No. 01-22-00924-CV, 2023 WL 4937059 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023). Fernandes sued the City of Baytown for negligence after he was injured on a waterslide at a city-owned waterpark. The City filed a plea to the jurisdiction contending that because Fernandes was engaging in a recreational activity on city-owned land, the TTCA’s recreational use statue applied and Fernandes had to plead and prove gross negligence to establish a waiver of governmental immunity. The trial court denied the city’s plea.

The appellate court reversed the trial court and dismissed Fernandes’s claims for lack of subject matter jurisdiction, holding that: (1) riding down a waterslide constitutes recreational use for the purposes of the recreational use statute; and (2) there was no evidence that the city knew of the danger or that the waterpark’s employees acted with conscious indifference to Fernandes’s safety. Therefore, Fernandes had not shown the gross negligence that would be required to defeat governmental immunity under the recreational use statute.

Tort Claims Act: Ferebee v. Law Office of Frank Powell, No. 01-22-00681-CV, 2023 WL 4937501 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023) (mem. op.). Powell sued the City of Shenandoah and Ferebee, the city attorney, for defamatory statements Ferebee allegedly made while giving the city council an update on separate litigation filed against the city by Powell. Ferebee moved to be dismissed from the lawsuit under Section 101.106(f) of the TTCA claiming that because he was acting within the scope of his employment and the suit could have been brought against the city, he was entitled to dismissal of the claims against him. The trial court denied Ferebee’s motion to dismiss and Ferebee appealed.

The appellate court reversed, holding that because Ferebee was acting within the scope of his employment by giving the litigation update, the suit could have been brought against the city and therefore Ferebee in his individual capacity was entitled to dismissal under the TTCA.

Tort Claims Act: City of Houston v. Walker, No. 01-22-00632-CV, 2023 WL 4937495 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023) (mem. op.). Walker sued the City of Houston after her husband died in a collision at an intersection in which he and a car coming in the opposite direction both thought they had green lights. Walker alleged that the collision was caused by the misuse of safety louvers, which are devices designed in traffic lights to deliberately obscure the color of the light until the driver is a certain distance away.

Walker alleged that governmental immunity was waived under the TTCA because her husband’s death was caused by a condition of tangible property. The city filed for summary judgment based on governmental immunity, arguing that the TTCA does not waive a government’s immunity for discretionary acts and that the TTCA’s waiver of immunity for unsafe conditions of personal property is restricted by Section 101.060 of the Act, which generally provides that the TTCA does not waive governmental immunity for claims about the condition of a traffic light unless the city was notified of the condition at issue and failed to correct it within a reasonable time. The trail court denied the city’s motion for summary judgment.

The appellate court reversed, holding that the TTCA did not waive immunity for Walker’s claims because: (1) the use of the louvers was a discretionary act by the city; and (2) Section 101.060 applied because Walker had not provided any evidence showing that the city was notified of the condition of the traffic light.

Tort Claims Act: City of Houston v. Edwards, No. 01-22-00709-CV, 2023 WL 5021217 (Tex. App.—Houston [1st Dist.] Aug. 8, 2023) (mem. op.). Edwards sued the City of Houston for injuries he received when a city police car driven by a police officer who was rushing to get to another location to assist an officer in a foot pursuit of a suspect collided first with a city fire engine that was responding to a medical emergency and then with her vehicle. Edwards claimed that the emergency-response exception to the Tort Claims Act did not apply because both the fire engine driver and the police officer would not have been entitled to official immunity. The city filed a plea to the jurisdiction, claiming governmental immunity. The trial court denied the plea and the city appealed.

The appellate court reversed, holding: (1) that the fire engine driver was entitled to official immunity because he was acting in his discretion in determining that the need to respond to a medical emergency outweighed the risk of harm to the public; and (2) the police officer was entitled to official immunity because he was acting in his discretion in determining that the need to assist another officer outweighed the risk of harm to the public; and (3) because both employees would have been entitled to official immunity, the emergency-response exception to the TTCA’s waiver of immunity to suit applied.

Administrative Rulings: City of Houston v. Jared Waldhoff, No. 01-22-00825-CV, 2023 WL 5110981 (Tex. App.—Houston [1st Dist.] Aug. 10, 2023) (mem. op.). Waldhoff sued the City of Houston seeking to overturn an administrative decision by the city that he had violated the Houston Airport System Operation Instructions, a decision that resulted in the permanent revocation of his access badge and the loss of his employment. He had entered the secure area of the airport through a nonstandard entrance but contended that it was not relevant because he submitted to a security check by a TSA agent before boarding. A reviewing trial court reversed the decision, reinstated Waldhoff’s badge, and issued an order stating that the conclusion that Waldhoff had violated the rule was not supported by substantial evidence nor was it free from legal error. The city appealed the judgment of the trial court, arguing that its administrative decision was supported by substantial evidence.

The appellate court affirmed, holding that the city’s argument amounted to a sufficiency of the evidence challenge, but that the city had not addressed the part of the trial court’s order stating that the administrative decision was not free from legal error. The appellate court reasoned that the evidentiary basis and the legal basis were independent grounds for the trial court’s ruling, so because the city had not challenged the legal basis it had waived any error.

Tort Claims Act: City of Houston v. Bustamante, No. 01-22-00699-CV, 2023 WL 5110982 (Tex. App.—Houston [1st Dist.] Aug. 10, 2023) (mem. op.). Bustamante sued the City of Houstin after she, Elisondo, and their children were injured in a collision with a city emergency vehicle when the vehicle entered an intersection without slowing and struck Bustamante’s vehicle. Bustamante gave notice of her claim under the TTCA about five months after the incident. The city filed a motion for summary judgment claiming governmental immunity, arguing that Bustamante had not provided notice of her claim within ninety days as required by the city charter. The trial court denied the city’s motion and the city appealed.

The appellate court affirmed, holding that although Bustamante had not provided timely notice as required by the city charter, there was a genuine issue of material fact as to whether city had actual notice of a possible claim against it because the city had undertaken an investigation as a result of the incident, showing that the city had the necessary information to alert it of its potential liability.

Civil Service: Nix v. City of Beaumont, No. 09-22-00042-CV, 2023 WL 4781212 (Tex. App.—Beaumont July 27, 2023) (mem. op.). Nix sued the City of Beaumont in district court, seeking review of the City’s Fire Fighters’ and Police Officers’ Civil Service Commission’s order permanently dismissing him from the fire department. The Civil Service Act requires that a petition for review of a commission’s order must be filed within 10 days after the date the final decision is received by the firefighter or his or her designee. Here, Nix’s attorney filed the petition 15 days after receiving the final decision. The trial court dismissed Nix’s petition for review and Nix appealed.

The appellate court affirmed, holding that although the Supreme Court’s orders providing deadline extensions related to Covid-19 were in place, those orders did not extend a jurisdictional deadline to file suit so Nix’s failure to timely appeal the commission’s order deprived the trial court of jurisdiction over the appeal.

Employment: Univ. of N. Tex. Health Sci. Ctr. v. Paul, No. 02-22-00305-CV, 2023 WL 4779480 (Tex. App.—Fort Worth July 27, 2023).  This is an age-and sex-related employment discrimination case.

Paul, a nontenure-track assistant professor sued the University of North Texas Health Science Center (UNTHSC) after her assistant-professor contract was not renewed. She alleged age discrimination, sex discrimination, and retaliation related to UNTHSC’s (1) failure to hire her for the tenure-track position that another younger woman was hired for, (2) failure to promote her to Department chair, and (3) failure to renew her one-year teaching contract.  UNTHSC filed a plea to the jurisdiction on sovereign-immunity grounds, which the trial court denied.  UNTHSC filed an interlocutory appeal.

The court of appeals reversed the trial court’s denial of UNTHSC’s plea to the jurisdiction on Paul’s sex-discrimination claim related to UNTHSC’s nonrenewal of her contract and on her retaliation and age-and sex-discrimination claims related to UNTHSC’s failure to hire her for the Department Chair position. However, the court affirmed the trial court’s denial of UNTHSC’s plea to jurisdiction as to (1) retaliation and age discrimination for the contract renewal and (2) retaliation, age discrimination, and sex discrimination for the failure to hire Paul for the tenure-track position.

Clean Air Act: Tex. Comm’n on Envtl. Quality v. Vecinos Para El Bienestar De La Comunidad Costera, No. 03-21-00395-CV, 2023 WL 4670340 (Tex. App.—Austin July 21, 2023). After the Texas Commission on Environmental Quality (TCEQ) issued an air permit to Texas LNG Brownsville, LLC (Texas LNG) for construction of a liquefied natural gas terminal along the Brownsville Ship Channel, the city of Port Isabel sought judicial review under Texas Government Code Sec. 2001.171. In response, TCEQ and Texas LNG filed a joint plea to the jurisdiction arguing the federal National Gas Act (NGA) provided exclusive jurisdiction to review challenges to state agency permits required by federal law for natural-gas terminals to federal courts under 15 U.S.C. § 717r(d)(1). The trial court denied their plea, and TCEQ and Texas LNG appealed to the court of appeals.

The appellate court reversed, holding that although TCEQ issued the order, it was carrying out its responsibility under the federal Clean Air Act to implement federal standards, and under 15 U.S.C. § 717r(d)(1), the United States Fifth Circuit Court of Appeals has exclusive jurisdiction over permit decisions relating to liquefied natural gas facility construction.

Tort Claims Act: Hous. Auth. of City of Austin v. Garza, No. 03-22-00085-CV, 2023 WL 4872981 (Tex. App.—Austin July 31, 2023).  In 2017, the Housing Authority of the City of Austin (HACA) started a renovation project at one of its apartment complexes to comply with the Americans with Disabilities Act (ADA). As part of the project, HACA contracted with a project developer who subcontracted with S. Cook Construction Company, L.P. (Cook) for construction services. Cook then subcontracted with Specialty Tractor Landscaping, L.L.C. (Specialty Tractor) for landscaping and porch construction services. After the work commenced, Julia Garza, a tenant at the apartment complex, injured herself after stepping on loose dirt concealing thin wooden planks covering landscaping trenches. As a result, Garza sued HACA (and Cook and Specialty Tractor) under the theory of premises liability under the Texas Tort Claims Act (TTCA). Denying HACA’s plea to the jurisdiction, the trial court ruled in favor of Garza. Thereafter, HACA filed an interlocutory appeal asserting governmental immunity and arguing Garza failed to present sufficient evidence for her premises-defect claim.

Citing to the Texas Supreme Court, the court of appeals explained that for a premises liability claim where a subcontractor is working, Garza would need to show HACA either (1) had a contractual right or (2) actually exercised control over the means, methods, or details of the independent contractor’s work. Because Garza failed to show HACA had a contractual right to control the premises where she fell and only alleged that Cook and Specialty Tractor exercised actual control over the premises, the appellate court concluded HACA’s sovereign immunity had not been waived under the TTCA and reversed the trial court’s order.

Takings/Ultra Vires: Consol. Towne E. Holdings, LLC v. City of Laredo, No. 04-22-00130-CV, 2023 WL 4482391 (Tex. App.—San Antonio July 12, 2023). Consolidated Towne East Holdings, LLC (“Consolidated”) sued the city to develop land in the city’s extraterritorial jurisdiction. Consolidated sought water and sewer services from the city as part of its proposed development. The city required annexation before it would provide the services. Consolidated sued on the grounds that the city’s precondition for water and sewer services amounts to an unconstitutional taking and that denial of services is an ultra vires act by the city manager and the city’s director of utilities. The trial court granted the city’s summary judgment motion and dismissed Consolidated’s claims. Consolidated appealed.

The appellate court affirmed and dismissed the case without prejudice, finding: (1) the case was not ripe because whether annexation costs are roughly proportional to their asserted purposes is not ripe for resolution until those costs are authoritatively set; (2) Consolidated’s declaratory judgment claim on the city ordinance requiring annexation likewise failed because it was premature; and (3) Consolidated’s ultra vires claim failed because the city manager and director of utilities had authority in the city’s ordinances to deny providing water and sewer services to Consolidated. 

Purchasing: City of Dallas v. Gadberry Constr. Co., Inc., No. 05-22-00665-CV, 2023 WL 4446291 (Tex. App.—Dallas July 11, 2023). This case involves a construction project in which the city of Dallas issued a request for sealed bids. After disqualifying a bidder, Gadberry Construction Company (Gadberry), for lack of experience and mixed reviews from its references, Gadberry sued the city. The trial court, ruling in favor of Gadberry, denied the city’s plea to the jurisdiction and granted a temporary injunction based on Sec. 252.061 of the Texas Local Government Code. The city subsequently appealed, arguing that Sec. 252.043(f) grants cities the authority to reject any and all bids for procurement contracts and Gadberry failed to establish a waiver of immunity. Because the city’s bid documents specifically notified bidders that it reserved the right to reject bidders for lack of experience for equivalent projects within the past three years and the city rejected Gadberry’s bid for that reason, the court determined the city did not violate the competitive bidding requirements of Chapter 252 and reversed the trial court’s order.

Municipal Court: State v. Villa, No. 05-22-00220-CR, 2023 WL 4571923 (Tex. App.—Dallas July 18, 2023). After Whitney Villa was convicted of assault by contact and assessed a fine by the city of Mesquite Municipal Court (a municipal court of record), she appealed the judgment to the County Criminal Court of Appeals No. 1. The county court subsequently reversed the municipal court’s judgment and remanded the case for a new trial. The municipal prosecutor’s office (the State) then appealed the County Criminal Court’s order to the Dallas Court of Appeals.

In its opinion, the appellate court reasoned that Texas Government Code Sec. 30.00014(a) only governs an appeal from a municipal court of record to certain courts such as county courts of appeals, but it does not apply to subsequent appeals from these courts to the courts of appeals. Further, appeals to the courts of appeals, which are governed by Sec. 30.00027, only grant an appellant the right to appeal if: (a) the fine assessed against the defendant exceeds $100 and the judgment is affirmed by the appellate court; or (2) the sole issue is the constitutionality of the statute or ordinance on which a conviction is based. Because this case did not fit within these two categories, the court ultimately concluded that it lacked jurisdiction to hear appeals by the State in these instances.

Immunity/Takings: City of Canton v. Lewis First Monday, Inc., No. 06-23-00027-CV, 2023 WL 4945085 (Tex. App.—Texarkana Aug. 3, 2023) (mem. op.). The plaintiff co-owns property with the city where a flea market operates. The market has an entrance through the historical main gate owned by the city. The city voted to restrict access to the historic main gate to vendors during the flea market and the plaintiff sued for: (1) declaratory judgment for an easement by estoppel; (2) declaratory relief for a taking; and (3) injunctive relief to prevent the city from locking the main gate. The city filed a plea to the jurisdiction, which the trial court denied.

On appeal, the appellate court reversed the trial court and found: (1) the plaintiff had no easement interest in a public roadway; (2) regulating traffic is a municipal governmental function; (3) the Private Real Property Rights Preservation Act only applies in the extraterritorial jurisdiction and the city’s act did not take place in the ETJ; and (4) the plaintiff did not have a takings claim because the act took place on city-owned property, the city did not restrict access to the plaintiff’s property, and the city did not deny plaintiff a permit. The appellate court vacated the trial court’s temporary injunction, reversed the denial of the plea, and rendered judgment for the city.

Tort Claims Act: Buchanan v. City of Bogata, No. 06-23-00011-CV, 2023 WL 4980974 (Tex. App.—Texarkana Aug. 4, 2023). Plaintiff sued the city over a car accident with a city employee when she was a passenger in a car. The city filed a plea to the jurisdiction based on lack of notice, which the trial court granted. The appellate court affirmed, finding that: (1) the city did not receive statutory notice under the Tort Claims Act; and (2) the city did not have actual notice because nothing in the police report provided notice to the city that the plaintiff was injured or that her injuries were caused by the employee’s negligence.

Immunity: El Paso Water Utilities Sys.-Pub. Serv. Bd. v. Marivani, No. 08-23-00071-CV, 2023 WL 4771207 (Tex. App.—El Paso July 26, 2023) (mem. op.). Aryan Marivani sued the City of El Paso and the El Paso Water Utilities System-Public Service Board (collectively “EPWU”) for negligence after a vehicle being driven by Gabriel Ramirez, an employee of EPWU, collided with Marivani’s parked car. EPWU answered the complaint with a plea to the jurisdiction, arguing that the case should be dismissed because Ramirez was commuting home at the time of the collision and was therefore not acting within the scope of his employment. The trial court denied the plea to the jurisdiction, and EPWU appealed. Municipalities generally have immunity from lawsuits unless the immunity has been waived. The Texas Tort Claims Act can provide such an immunity waiver for property damage caused by employee negligence, if the damage is caused by a motor vehicle being operated by an employee who is acting within the scope of their employment. An employee is typically not acting within the scope of their employment while they are commuting to and from work. This rule is known as the “coming-and-going” rule and can apply even when the employee is driving a city-owned vehicle. Exceptions exist if the employee is on a special mission for the employer or performing another service for the employer. Despite driving a company vehicle at the time of the collision, evidence supported the fact that Ramirez was merely commuting home at the time of the collision. Marivani argued that certain company policies might indicate that Ramirez was in his employment scope; however, the court found otherwise, taking pains to analyze and distinguish this case from other relevant cases. Ultimately, the appellate court reversed the trial order denying EPWU’s plea and rendered judgment in favor of EPWU.

Tort Claims Act: Franz and South Texas Elderly Services, Inc., v. Interim Police Chief Romero Rodriguez and City of Hidalgo, No. 13-22-00413-CV, 2023 WL 5108966 (Tex. App.—Corpus Christi–Edinburg Aug. 10, 2023) (mem. op.). Franz sued the City of Hidalgo under the TTCA and Rodriguez and Sanchez in their individual capacity after Rodriguez and Sanchez removed a political sign located on Franz’s property under the Election Code’s prohibition on certain placement of political signs. Franz alleged that Rodriguez and Sanchez had violated 42 U.S.C. Section 1983. The trial court dismissed the individual claims against Rodriguez and Sanchez under Section 106.101(e) of the Texas Tort Claims Act, which requires that an employee be dismissed from a lawsuit that could have been brought against the city. Franz appealed, arguing that the trial court should not have dismissed his Section 1983 claims against the employees individually.

The appellate court affirmed, holding that because Franz had not pleaded any of the elements of a Section 1983 claim, the trial court correctly dismissed the claims under Section 106.101(e) of the Texas Tort Claims Act.

Note:  Included opinions are from July 11, 2023, through August 10, 2023.

JS-007 (Volunteer Fire Department): Local Government Code section 263.006 allows a county commissioners court to exchange an interest in real property for an interest in another if it meets certain notice and appraisal requirements. Subsection 263.006(e) exempts from those requirements a real property exchange with specified types of entities, including a political subdivision of this state. A court would likely conclude that a volunteer fire department organized as a nonprofit entity is not a political subdivision within the scope of subsection 263.006(e).

AC-001 (Dual Office Holding): Article XVI, subsection 40(b) of the Texas Constitution prohibits a state employee who receives all or part of their compensation from state funds from receiving a salary for serving as an elected member of the Hutto City Council. As the Hutto City Council has construed the per-meeting payment provided by subsection 3.04(b) of the Hutto City Charter to constitute “salary” under article XVI, subsection 40(b), a state employee serving as a council member must decline the charter’s salary payment in order to comply with article XVI, subsection 40(b).

AC-003 (Solar Moratorium): Specified provisions of the Transportation Code give a commissioners court authority over certain aspects of county roads. To the extent a moratorium proposed by a county in relation to a commercial utility-scale solar-energy facility is adopted pursuant to such authority but is meant to reach activity other than that related to county roads, a court would likely find it invalid and unenforceable.

Health and Safety Code section 121.003 authorizes the commissioners court of a county to enforce laws reasonably necessary to protect the public health. To the extent a moratorium proposed by a county in relation to a commercial utility-scale solar-energy facility is adopted pursuant to section 121.003 but does not seek to enforce a specific, preexisting public health law, a court would likely find it invalid and unenforceable.

2023 TCAA Fall Conference in Dallas

The Texas City Attorneys Association (TCAA) Fall Conference will be held in conjunction with the TML Annual Conference and Exhibition on October 5 at the Kay Bailey Hutchison Convention Center in Dallas.

Topics include:

• Employer Drug Testing
• Training Staff to Deal with Uncivil People in a Civil Manner
• Preparing for Mass Gatherings: The City of Fredericksburg and the Total Eclipse
• Think It Over: Dealing with Fiber Companies that Want to Use Your City’s Right-of-Way
• AIE, AIE, AIE, and AI: What Special Issues Does Artificial Intelligence Pose for Employers and Attorneys?
• Recent Federal Cases of Interest 
• The Nuts and Bolts of a SOAH-Contested Case Hearing (including Virtual Hearings)
• Procurement Disputes: Preventing, Managing, and Litigating
• Ethics: Protecting the Attorney Client Privilege with In-House Counsel

TCAA to Fill Board Position on October 5, 2023

Those interested in applying for a place on the board of the Texas City Attorneys Association should fill out an application and return it via email to Evelyn Njuguna at evelyn@tml.org. Application forms are available here and under the “About TCAA” tab, “Board of Directors” section, on the TCAA website at https://texascityattorneys.org. Applications must be received by 5:00 p.m. on August 25, 2023.

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 at their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2022 Fall Conference and 2023 Summer Conference

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

Note: Included cases are from June 11, 2023, through July 10, 2023.

Immunity: CPS Energy v. Elec. Reliability Council of Tex., No. 22-0056, 2023 WL 4140460 (Tex. June 23, 2023). This case stems from claims against ERCOT related to Winter Storm Uri.

Action was brought in two separate proceedings against the Electric Reliability Council of Texas (ERCOT)—first by CPS Energy (CPS), a municipally owned electric utility, alleging breach of contract, negligence, gross negligence, negligence per se, breach of fiduciary duty, and violations of Texas Constitution, and second, by Panda Power Companies (Panda) for fraud, negligent misrepresentation, and breach of fiduciary duty—alleging that ERCOT’s electricity capacity, demand, and reserves reports misled the power company to invest $2.2 billion in building new power plants.

ERCOT filed a plea to the jurisdiction, arguing that the claims are barred by sovereign immunity and, alternatively, that the Public Utility Commission (PUC) has exclusive jurisdiction over the claim. The trial court denied the plea.  ERCOT appealed, asserting that it is a governmental unit entitled to an interlocutory appeal from the denial of a plea to the jurisdiction. ERCOT also sought review by petition for writ of mandamus in the event it is not entitled to an interlocutory appeal. After one court of appeals panel summarily denied mandamus relief, ERCOT filed its petition for writ of mandamus in the Supreme Court to continue the alternative path to review. A different court of appeals panel then held that ERCOT is a governmental unit entitled to take an interlocutory appeal, that the PUC has exclusive jurisdiction over CPS’s claims, and that CPS’s claims should be dismissed. The Supreme Court granted review.

The Supreme Court determined that: (1) ERCOT is a governmental unit as defined in the Texas Tort Claims Act and thereby entitled to pursue an interlocutory appeal from the denial of a plea to the jurisdiction; (2) the PUC has exclusive jurisdiction over the parties’ claims against ERCOT; and (3) ERCOT is entitled to sovereign immunity.  Accordingly, in the CPS case, the court affirmed the appellate court’s judgment, dismissing CPS’s motion to stay the trial court’s temporary restraining as moot.  In the case related to Panda, the court reversed the court of appeals’s judgement and dismissed the case for lack of jurisdiction.

Emergency Management: Abbott v. Harris Cnty., No. 22-0124, 2023 WL 4278763 (Tex. June 30, 2023).  This case addresses the scope and constitutionality of the governor’s authority under the Texas Disaster Act to prohibit local governments from imposing mask requirements. 

Harris County filed suit against the governor and attorney general, alleging that the governor exceeded his authority under the Texas Disaster Act by issuing an executive order that prohibited local governmental entities and officials from requiring face coverings as part of their COVID-19 mitigation efforts and purported to suspend several laws that county officials relied on to issue such face covering requirements.  The trial court denied the defendants’ plea to the jurisdiction and granted the county’s motion for temporary injunction.  On appeal, the Austin Court of Appeals affirmed. 

The Supreme Court of Texas granted the defendants’ petition for review, and held that: (1) the county had standing to bring seek injunctive relief against the attorney general; (2) the state’s appeal was not rendered moot by executive order’s expiration; (3) the county judge was governor’s designated agent under Disaster Act; (4) the executive orders were valid exercise of the governo’’s authority under Disaster Act; and (5) the county was not likely to succeed on merits of its claim that governor lacked authority to issue the executive orders.  The court vacated the judgment of the court of appeals, dissolved the temporary injunction, and remanded the case.

(The court reached the same conclusion in the following four separate cases related to the governor’s authority to prohibit local mask mandates:  Abbott v. Jenkins, No. 21-1080, 2023 WL 4278505 (Tex. June 30, 2023); Abbott v. City of San Antonio, No. 21-1079, 2023 WL 4278501 (Tex. June 30, 2023); Abbott v. La Joya Indep. Sch. Dist., No. 22-0328, 2023 WL 4278488 (Tex. June 30, 2023); and Abbott v. Fort Bend Cnty., No. 22-1056, 2023 WL 4278491 (Tex. June 30, 2023).)

Disability Discrimination: Tex. Tech Univ. Health Scis. Ctr. – El Paso v. Niehay, No. 22-0179, 2023 WL 4278585 (Tex. June 30, 2023).  This is a case of first impression in which the court determines whether morbid obesity, without an underlying physiological disorder or condition, is an impairment under the Texas Commission on Human Rights Act (TCHRA).

Following her dismissal from medical residency program administered by Texas State University’s medical school, the medical resident filed suit against the university, asserting that she was terminated because her morbid obesity was regarded as an impairment, and alleging a claim for unlawful disability discrimination in violation of the TCHRA. The trial court denied the university’s plea to the jurisdiction and motion for summary judgment. On appeal, the court of appeal’s affirmed, and the Supreme Court granted the university’s petition for review.

The Supreme Court determined that (1) the resident’s morbid obesity was not an impairment for purposes of her TCHRA disability discrimination claim; (2) morbid obesity does not qualify as an impairment under the TCHRA absent an underlying physiological disorder or condition; and (3) there was no evidence that the resident had a disability as defined by the TCHRA.

Tort Claims Act: City of Houston v. Green, No. 22-0295, 2023 WL 4278246 (Tex. June 30, 2023). The primary issue in this case is whether the record contains evidence that a city police officer was driving “with reckless disregard for the safety of others” at the time of the accident.

A motorist brought an action against the city seeking to hold it vicariously liable for a police officer’s alleged negligence and independently liable for negligently hiring, training, and supervising the officer following a motor vehicle accident involving the officer while he was responding to an emergency call.

The Supreme Court held that the officer did not act with reckless disregard when the accident occurred, and thus, the emergency exception to waiver of governmental immunity under the Tort Claims Act applied.

Texas Medical Liability Act: City of Alvin v. Fields, No. 01-22-00572-CV, 2023 WL 4003522 (Tex. App.—Houston [1st Dist.] June 15, 2023) (mem. op.). Fields was injured when the ambulance in which she was being transported was struck by a truck at an intersection after the ambulance driver entered the intersection at a yellow light to avoid jostling Fields. Fields sued the city, claiming the city’s governmental immunity had been waived under the Texas Tort Claims Act. The city filed a plea to the jurisdiction claiming governmental immunity and a motion to dismiss under the Texas Medical Liability Act. The trial court denied both, and the city appealed.

The appellate court affirmed the trial court’s denial of the city’s plea to the jurisdiction, holding that because Fields stated she was experiencing whiplash immediately after the accident, a fact issue existed as to whether the city had actual knowledge of Fields’s claim. The appellate court reversed the trial court’s denial of the city’s motion to dismiss, holding that because the accident occurred while Fields was in an ambulance receiving care, the Texas Medical Liability Act applied to the claim, and therefore Fields would have had to file an expert report addressing standard of care, breach, and causation.

Texas Citizens Protection Act: Conrad v. Joiner, No. 01-22-00450-CV, 2023 WL 4356187 (Tex. App.—Houston [1st Dist.] July 6, 2023) (mem. op.). Joiner, mayor of Kemah, Texas, sued Conrad for defamation based on a series of critical Facebook posts, billboards, and posted signs alleging that Joiner had abused power, violated the Texas Open Meetings Act, acted ultra vires as mayor, and engaged in criminal activity. Conrad moved to dismiss the suit under the Texas Citizens Protection Act and the trial court denied the motion.

The appellate court reversed, holding that because Joiner’s claims were in reaction to Conrad’s exercise of free speech, the burden then shifted to Joiner to present evidence to show a prima facie case of defamation. Joiner had not presented evidence to show actual malice, so Conrad was entitled to dismissal of the claims against him under the TCPA.

Employment: Beebe v. City of San Antonio by & through CPS Energy, No. 04-22-00033-CV, 2023 WL 3985171 (Tex. App.—San Antonio June 14, 2023). A former employee of city-owned CPS Energy (CPS) sued CPS alleging discrimination based on race and disability, retaliation for reporting discriminatory treatment, and harassment based on national origin and disability. CPS filed a plea to the jurisdiction, which the trial court granted.

The appellate court found that: (1) the plaintiff failed to establish disparate treatment because he failed to show an example of a similarly situated coworker not being similarly fired for sexual harassment; (2) the plaintiff presented sufficient evidence to establish a prima facie case for retaliation; (3) CPS presented sufficient evidence for a legitimate, non-discriminatory explanation for the plaintiff’s termination; and (4) there was some evidence of a legitimate reason for plaintiff’s termination rather than pretext for discriminatory intent. Based on the findings, the appellate court affirmed the trial court’s order granting the plea to the jurisdiction.

Attorney’s Fees: Suarez v. Silvas, No. 04-22-00540-CV, 2023 WL 4337717 (Tex. App.—San Antonio July 5, 2023) (mem. op.). This is the third appeal in the case where the city removed councilmember Silvas for violating a charter provision and Silvas sued the city and city employees. The city and city employees filed a plea to the jurisdiction on remand the second time, claiming the trial court should dismiss all of Silvas’s claims for attorney’s fees and costs under the Texas Tort Claims Act (TTCA) against the city employee defendants and that Silavas did not have a proper Uniform Declaratory Judgment Act (UDJA) claim because her ultra vires claims were moot. The trial court denied the plea and the city and city employees appealed.

On appeal, the appellate court affirmed the denial of the plea and held that: (1) while the city is immune from Silvas’s ultra vires claim, the city employees were not because they were acting in their official capacities and therefore were not immune from attorney’s fees under the TTCA; and (2) the decision to award attorney’s fees under the UDJA is at the discretion of the trial court.

Variances/Land Use: City of Live Oak v. Lee, No. 04-23-00022-CV, 2023 WL 4338957 (Tex. App.—San Antonio July 5, 2023) (mem. op.). The city erroneously issued a building permit to a homeowner to build in violation of the city’s setback requirements. When the city received notice from the plaintiffs of the error, the board of adjustment issued a variance for the homeowner and the plaintiffs sued. The city filed a plea to the jurisdiction and the trial court denied it. The city appealed.

The appellate court found that: (1) the plaintiffs did not need to obtain a writ of certiorari because they filed their petition within ten days after the date the board granted the variance request; (2) the city was not a proper party; and (3) the city failed to raise the issue of whether attorney’s fees were proper in the plea. The appellate court affirmed the plea but the appellate court remanded to the trial court to dismiss the city.

Variances/Land Use: City of Dallas v. PDT Holdings, Inc., No. 05-22-00730-CV, 2023 WL 4042598 (Tex. App.—Dallas June 16, 2023).  In this case, PDT Holdings, Inc. (PDT) sought to build a duplex on its property in Dallas. After submitting plans showing the building heights and being issued permits to build, PDT was later cited by a city inspector and issued a stop work order because the duplex’s parapet height exceeded the city’s 36-foot building height restriction. After correcting the violation, the city approved PDT’s amended building plans but later issued a second stop work order because the duplex’s overall height did not comply with city’s Residential Proximity Slope (RPS) ordinance which limited the height to 26 feet. PDT later applied for a variance from the Board of Adjustment on three separate occasions but was denied. Ultimately, the trial court ruled in favor of PDT barring the city’s enforcement of the RPS ordinance on the basis of the equitable estoppel doctrine. The city appealed thereafter.

Reversing the trial court, the court of appeals held that the case did not meet the threshold of “an exceptional case where manifest justice demanded departure from the general rule precluding estoppel against a municipality.” Although there were factors that weighed in favor of estoppel, PDT failed to establish the doctrine’s essential elements including a showing of affirmative misrepresentation on the part of the city and reasonable reliance by PDT on the misrepresentation. The court concluded that nothing in the record suggested the city deliberately calculated to induce PDT’s reliance. Rather, the city only mistakenly issued the building permits, and PDT’s reliance on those permits was not reasonable because PDT was responsible for reviewing all applicable ordinances, including the RPS ordinance, when it first applied for a building permit. As a result, the court reversed the trial court’s judgment and held that PDT was not entitled to relief on the basis of the equitable estoppel doctrine.

Tort Claims Act: Barker v. Sam Houston State Univ., No. 06-22-00076-CV, 2023 WL 4113275 (Tex. App.—Texarkana June 22, 2023). Plaintiff filed a suit against her employer when she was injured by a vehicle driven by another employee. The university filed a plea to the jurisdiction and the plaintiff appealed. The appellate court found that although the plaintiff was going to lunch or running an errand when injured and not on the company’s clock, her actions were so closely connected to her employment to render it an incident thereto. Therefore, her exclusive remedy was workers’ compensation and she could not sue under the Texas Tort Claims Act. The appellate court affirmed the trial court’s judgment.

Takings: ATI Jet Sales, LLC v. City of El Paso, No. 08-21-00208-CV, 2023 WL 4370471 (Tex. App.—El Paso July 5, 2023). The City of El Paso filed an original application for a tax warrant against ATI Jet Sales in July 2020 due to tax delinquency for the years 2017 to 2019, amounting to $487,271.67. Consequently, Aircraft N277AL was seized. The city voluntarily returned Aircraft N277AL and moved to nonsuit ATI Jet Sales from the warrant case. In April 2021, ATI Jet Sales filed a lawsuit against the city alleging an unlawful taking and seeking a declaratory judgment that the seizure was unlawful, and the city filed a plea to the jurisdiction. The trial court dismissed the case due to lack of jurisdiction. ATI Jet Sales appealed, challenging the city’s plea to the jurisdiction regarding the collection of taxes, which ATI Jet Sales claimed amounted to an unlawful taking by the city. ATI Jet Sales also argued that the city exceeded its statutory authority, thereby waiving its governmental immunity. The crux of the appeal was jurisdictional, centering on whether the city acted lawfully in its tax collection practices, alleging that the city illegally seized property owned by one taxpayer, the entity ATI Jet West, in satisfaction of delinquent taxes owed by another taxpayer, ATI Jet Sales. The court disagreed, finding that inaccuracies on the appraisal roll did not absolve ATI Jet Sales of its tax liability and that the city acted within the bounds of its taxing authority. Additionally, the court found that ATI Jet Sales failed to raise a fact issue as to whether the city acted lawfully in the collection of taxes, which defeated its takings claim and its governmental-immunity waiver.

Tort Claims Act: City of Houston v. Flores-Garcia, No. 14-21-00680-CV, 2023 WL 4196541 (Tex. App.—Houston [14th Dist.] June 27, 2023) (mem. op.). Kevin Lancaster, a Senior Plant Operator at the Houston Public Works Department, ran a stop sign while driving a city-owned car, and hit Flores-Garcia’s vehicle. On the day of the accident, Lancaster stopped at a convenience store near the collision site for unknown reasons, but stated that it was not related to his job duties. He also could not recall his destination after leaving the store when the accident occurred. Flores-Garcia sued the city for negligence, alleging that Lancaster failed in a number of respects concerning safe driving and that the city’s immunity was waived under the Texas Tort Claims Act (TTCA) due to Lancaster acting within the scope of his employment during the collision. The city contested the claim, arguing through a motion for summary judgment that the limited waiver of governmental immunity under the Texas Tort Claims Act did not apply, because Lancaster was not acting within the scope of his employment when the accident happened. The trial court denied the city’s motion, and the city appealed.

A governmental unit is typically not liable for the torts of their agents, unless there is a constitutional or statutory waiver of immunity. The TTCA provides such a waiver, allowing for a governmental unit’s immunity to be waived in cases of personal injury arising from the negligent use of a motor vehicle by an employee acting within the scope of their employment and when the employee would be personally liable under Texas law. The determination of whether a person is acting within the scope of their employment depends on whether the act causing the injury was in furtherance of the employer’s business and for the accomplishment of the objective for which the employee was employed. In cases where a vehicle involved in a collision is owned by the driver’s employer, it is generally presumed that the driver was acting within the scope of their employment; however, evidence of the driver being on a personal errand at the time of the accident can rebut this presumption. An action is considered to be outside the scope of employment if it occurs as part of an independent course of conduct not intended by the employee to serve any purpose of the employer. Nonetheless, mixed motives do not necessarily exclude an action from being within the scope of employment if the action also serves a purpose for the employer. In the current case, Lancaster’s regular work duties included driving a city-owned vehicle to inspect water complaints and flush hydrants. The city wanted the court to infer that Lancaster was still deviating from his duties after leaving the convenience store, but the court pointed out that they must resolve any doubts in favor of the nonmovant during a motion for summary judgment. The court concluded that the evidence did not definitively establish that Lancaster was on a personal errand at the time of the accident. As such, the court rejected the city’s sole issue on appeal, upholding the trial court’s decision to deny the city’s motion for summary judgment.

Note:  Included opinions are from June 11, 2023, through July 10, 2023.

JS-001 (Bail Bonds): Code of Criminal Procedure article 103.0031 generally permits a county or a municipality to enter into a third-party collection contract to recover money owed on certain items in criminal cases, including forfeited bonds. The reference to a nonexistent “section” in Code of Criminal Procedure article 103.0031(h), providing that “[t]his section does not apply to commercial bail bonds,” is a scrivener’s error that creates an absurdity, such that a court would likely construe its exception to refer to article 103.0031.

A court would likely conclude that attorney sureties execute “commercial bail bonds” to the extent they sell their bonding services for a fee or commission. As such, article 103.0031(h) would prohibit a commissioners court from entering into a third-party contract for collection services on forfeited attorney surety bail bonds. Instead, forfeited attorney surety bonds would be collected by district and county attorneys, clerks of district and county courts, sheriffs, constables, and justices of the peace pursuant to Code of Criminal Procedure article 103.003(a).

JS-006 (Incompatibility): The common-law doctrine of conflicting-loyalties incompatibility prohibits one person from simultaneously holding two offices that would prevent the person from exercising independent and disinterested judgment. Because the La Joya Independent School District and the Hidalgo County Irrigation District No. 6 have taxation authority in overlapping territory, one individual may not simultaneously serve as a school board trustee and irrigation district board member. A court would likely conclude that in qualifying for the second incompatible office of trustee for the School District, the individual does not holdover under article XVI, subsection 17(a).

88^th Legislative Session

The 2023 legislative session concluded on May 30. The bill summaries of the legislation that passed are available here.

NEW! TCAA Paralegal Program

The Texas City Attorneys Association (TCAA) is pleased to announce its first ever Paralegal Program, a series of hour-long webinars that will provide municipal education and training to paralegals and legal assistants. The first webinar will cover the fundamentals of city regulation, including basic components of home rule and Type A, B, and C municipalities. The first webinar will take place via zoom on Tuesday, July 18, 2023, from 12:00 p.m. to 1:00 p.m. This course has been approved for 1 hour of CLE credit by the State Bar of Texas Paralegal Division. 

Click here to register. A zoom link with instructions will be sent to the email address provided. Please email Alyssa White at alyssa@tml.org for questions.

SAVE THE DATE – UPCOMING TCAA EVENT!

The 2023 TCAA Fall Conference will take place on October 5, 2023, in Dallas, and will be held in conjunction with the TML Annual Conference.

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 at their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2022 Fall Conference and 2023 Summer Conference

These TCAA online seminars are FREE, allowing TCAA members who are city attorneys, assistant city attorneys, or attorneys who regularly practice municipal law to view the videos from the conferences in a single–session format. Viewing a session allows attorneys to receive participatory CLE credit with the State Bar. To view these seminars, please visit tcaaonlineseminars.org. (Use the case-sensitive password “FreeCLE” to gain access to the sessions.) The 2023 Summer Conference will be recorded and posted online for viewing after the conference.

Note: Included cases are from May 11, 2023, through June 10, 2023.

Civil Rights: Baker v. Coburn, No. 21-10303, 2023 WL 3573302 (5th Cir. May 17, 2023), as revised (May 19, 2023). Darion Baker was shot and killed by police officers after he attempted to evade arrest by fleeing in a stolen vehicle. Coburn, one of the officers, fired multiple shots before the car moved, and he and the other officer continued to fire shots after the car drove away. Baker’s family filed suit against the officers under § 1983, claiming that the officers used excessive force. The officers claimed qualified immunity and moved for summary judgment. The district court granted the officers’ motion for summary judgment, and Baker’s family appealed.

The appellate court reversed the district court’s grant of summary judgment. The court found that Baker’s family presented sufficient evidence to create a genuine issue of material fact to show that: (1) the officers violated Baker’s constitutional rights by using excessive force because there was no immediate threat to the officers’ safety; and (2) it became unreasonable for the officers to believe that Baker could use the vehicle to harm the officers once he began to drive away in the other direction.

Legislative Privilege: La Union Del Pueblo Entero v. Abbott, No. 22-50435, 2023 WL 3494770 (5th Cir. May 17, 2023). The United States and others filed suit, alleging that amendments made to the Election Code were racially discriminatory, and, therefore, violated the Constitution and the Voting Rights Act. When the plaintiffs asked for certain documents from the Texas Legislature during discovery, the legislators withheld some documents, claiming legislative privilege. The district court rejected the legislators’ legislative privilege claims, ordering them to produce the documents, so the legislators appealed.

The appellate court reversed, upholding the legislators’ legislative privilege. The appellate court rejected the plaintiffs’ argument that the legislators waived or must yield their privilege because they participated in outside communication because outside communication is often necessary in modern legislative procedure, and forbidding legislative procedure to apply in this circumstance would protect too little of the legislative process. Therefore, the scope of legislative privilege must extend to outside communications. The court also rejected that this was a situation in which the legislative privilege must yield, for yielding is a rare instance which occurs only when there are important federal interests at stake, and this was not the case here.

Civil Rights: Wood v. Bexar Cnty., Texas, No. 22-50888, 2023 WL 3563012 (5th Cir. May 19, 2023). Amanda Wood filed suit against Officer Gerald Gereb and Bexar County for violating her constitutional rights after Officer Gereb pulled her over without providing a basis for the stop, accused her of driving while intoxicated, and then arrested her when she refused to participate in a field sobriety test. The district court granted Gereb and Bexar County’s motion to dismiss because the blood-draw warrant affidavit attached to the motion to dismiss showed probable cause to pull Wood over. Wood appealed the dismissal of her claims.

The appellate court found that the magistrate judge erred in relying entirely on the blood-draw warrant affidavit attached to the motion to dismiss because a court may only consider documents attached to a motion to dismiss when such documents are referred to in a plaintiff’s complaint and are central to the plaintiff’s claims. In addition, the appellate court stated that the district court erred by neglecting to accept the plaintiff’s version of the facts as true, which is required at this stage of the case. Therefore, the appellate court reversed and remanded the case.

Civil Rights: Tuttle v. Sepolio, No. 22-20279, 2023 WL 3635817 (5th Cir. May 23, 2023). The plaintiffs’ estates filed suit against various police officers after one police officer applied for and received a no-knock search warrant for the plaintiffs’ home based on a fraudulent affidavit stating that the plaintiffs sold drugs at the home, which resulted in a group of officers entering the home to execute the warrant and shooting and killing the plaintiffs after gunfire broke out.

The district court denied the motions to dismiss the excessive force claims asserted against the individual officers. The appellate court, accepting the plaintiffs’ version of the facts as true, found them sufficient at this stage in the suit to establish that the plaintiff was injured as a result of force that was objectively unreasonable in light of the circumstances and affirmed the district court’s decision on this aspect of the judgment.

The district court denied one of the supervising officer’s motion to dismiss the plaintiff’s excessive force and search and seizure claims based on a failure-to-supervise theory. The appellate court found that the facts alleged by the plaintiffs satisfied the requirements for a failure-to-supervise claim to proceed and there was a causal link between his failure to supervise and the injuries that occurred. Therefore, the appellate court affirmed the district court’s decision.

The district court denied the motions to dismiss the plaintiffs’ excessive force and search and seizure claims based on a failure-to-intervene theory. The appellate court found that the plaintiffs were unable to show that an officer was present while another officer violated the plaintiffs’ constitutional rights, was aware of the violation, and had a clear opportunity to intervene but failed to do so. Therefore, the appellate court found that the district court erred in allowing these claims to proceed, and it reversed this part of the decision.

The appellate court reversed the district court’s denial of one of the supervising officer’s motion to dismiss the plaintiffs’ excessive force and search and seizure claims based on a direct liability theory because the supervising officer was not personally involved in obtaining the search warrant or in effectuating the search, so he had no direct role in the activity.

Civil Rights: Scott v. City of Mandeville, No. 20-30507, 2023 WL 3592138 (5th Cir. May 23, 2023). The plaintiff was arrested for driving while intoxicated and sued under § 1983, alleging false arrest and excessive force along with the Louisiana state law claims of false arrest, excessive force, negligence, and vicarious liability. The trial court granted summary judgment and the plaintiff appealed.

On appeal, the Fifth Circuit affirmed, finding: (1) the officers were entitled to qualified immunity on the false arrest claims because the officers had probable cause to arrest the plaintiff despite the fact that they did not believe she was under the influence of alcohol; (2) the officers did not use excessive force in handcuffing the plaintiff behind her back when she said she had surgery and asked them to stop because the force used was not clearly unreasonable; and (3) the state law claims failed because there was no evidence to support the plaintiff’s claims of negligence.

Civil Rights: Gorsky v. Deputy Guajardo, No. 20-20084, 2023 WL 3690429 (5th Cir. May 26, 2023). The plaintiffs sued law enforcement officers under § 1983 based on the officers’ unlawful arrest of one of the plaintiffs, illegal entry and search of the plaintiffs’ home, and use of excessive force against the plaintiffs. The officers moved for summary judgment and the trial court denied it. The officers appealed.

On appeal, the Fifth Circuit found it lacked jurisdiction to review the district court’s decision that a fact issue is genuine as to the illegal entry, illegal search, and excessive force claims; therefore, the court dismissed the appeal regarding those claims. Regarding the false arrest claims, the Fifth Circuit found that the plaintiff presented sufficient facts that the plaintiff was arrested without probable cause and a reasonable officer could not have believed he had probable cause to arrest the plaintiff for failure to comply with instructions to get his wife from inside the house as part of a criminal mischief investigation. The Fifth Circuit affirmed the district court’s order denying summary judgment for the false arrest claims.

Civil Rights: Ellis v. Garza-Lopez, No. 23-10022, 2023 WL 3723634 (5th Cir. May 30, 2023). The plaintiff brought a § 1983 action against two police officers based on his detention and subsequent search. He also alleged cruel and unusual punishment in violation of his Eighth Amendment rights because he was directed to destroy his marijuana or receive a citation. The district court granted the defendants’ motion for summary judgment on the grounds of qualified immunity. Plaintiff appealed.

On appeal, the Fifth Circuit found: (1) the officers had reasonable suspicion to detain the plaintiff and probable cause to conduct a warrantless search because they could smell marijuana coming from the car; and (2) the complaint about being forced to destroy the marijuana did not present an Eighth Amendment claim. Because the officers did not violate any of the plaintiff’s constitutional rights, the Fifth Circuit affirmed and found the officers were entitled to qualified immunity.

Civil Rights: Edwards v. City of Balch Springs, Texas, No. 22-10269, 2023 WL 3916280 (5th Cir. June 9, 2023). The city employed a police officer who a jury later convicted of murdering a teenage boy while on duty. The boy’s father sued the city under § 1983. The trial court granted the city’s motion for summary judgment, reasoning that the city’s police department’s use-of-force policy was constitutional, and also that plaintiff’s training, supervisory, and disciplinary theories of liability lacked factual support. 

On appeal, the Fifth Circuit affirmed, finding: (1) the city’s use-of-force policy did not have to list out every constitutional requirement to be constitutional; (2) the city’s use-of-force policy did not affirmatively allow or compel an officer to use deadly force based solely on the officer’s own “underlying intent or motivation”; (3) the officer’s isolated instances of previous departures from the overall use-of-force policy did not establish a pattern of the city’s deliberate indifference and therefore the failure to train claim failed; and (4) the failure to supervise claim failed because the city’s lack of a system to track use of force incidents did not amount to a complete disregard of the risk that a violation of a particular constitutional right would follow.

Note: Included cases are from May 11, 2023, through June 10, 2023.

Eminent Domain: Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, No. 21-0507, 2023 WL 3556685 (Tex. May 19, 2023).  The issue in this case is whether in an eminent-domain proceeding brought by one political subdivision against another, governmental immunity bars such proceeding.

Hidalgo County Water Improvement District No. 3 (Improvement District) offered to purchase a subsurface easement from the Hidalgo County Irrigation District No. 1 (Irrigation District), which rejected the offer.  After negotiations failed, the Improvement District filed a condemnation action against the Irrigation District.  The Irrigation District filed a plea to the jurisdiction arguing that it had governmental immunity from the condemnation suit and the Legislature had not waived that immunity.  The trial court granted the plea and dismissed the suit. The court of appeals affirmed.

The Supreme reversed, holding that governmental immunity does not apply in eminent-domain proceedings and that the Irrigation District is not immune from the Improvement District’s condemnation suit. In reaching this conclusion, the court took into consideration the purposes governmental immunity serves, its nature, and the development of the court’s immunity and eminent-domain precedent.

Immunity: City of Austin v. Quinlan, No. 22-0202, 2023 WL 3767092 (Tex. June 2, 2023). The issue in this appeal is whether the City of Austin had a legal duty to ensure a sidewalk café, to which it had delegated maintenance responsibilities under a permit, fulfilled its maintenance obligations, thus, waiving its governmental immunity.

A restaurant patron brought premises liability action against the City of Austin and a restaurant that operated a sidewalk café following an ankle injury that was sustained when the patron fell more than one foot from the sidewalk to the street.  The trial court denied the city’s plea to the jurisdiction and the city appealed. The court of appeals affirmed in part and reserved in part. 

The Supreme Court granted the petition for review and reversed, holding that: (1) a sidewalk café maintenance agreement between the restaurant and the city did not impose a nondiscretionary duty on the city, and thus, claims against the city did not fall outside the “discretionary function” exception to waiver of immunity under the Texas Tort Claims Act; (2) the city’s alleged control over the sidewalk café, under agreement, had no bearing on the issue of whether the “discretionary function” exception to the city’s waiver of immunity applied; (3) the statutes governing a city’s authority to issue a permit for use of city street or sidewalk for public convenience or private use did not impose a nondelegable, nondiscretionary duty on a city, for which alleged breach fell outside the “discretionary function” exception to waiver of immunity; and (4) the dismissal of the complaint, rather than remand to allow the patron an opportunity to replead, was appropriate.

Economic Development Agreements: City of League City v. Jimmy Changas, Inc., No. 21-0307, 2023 WL 3909986 (Tex. June 9, 2023).  This is an interlocutory appeal in which the Supreme Court determined the proper governmental/proprietary dichotomy in a breach-of-contract case.

The City of League City entered into a “Chapter 380 Economic Development Incentives Grant Agreement” with Jimmy Changas, Inc. (Changas) in which the city offered incentives including reimbursements of fees and a percentage of local sales tax payments to Changas to invest $5 million to develop a restaurant facility within the city’s entertainment district. After Changas completed the project, the city failed to provide the reimbursements contending that Changas failed to timely submit documentation that it had invested $5 million and created at least 80 full-time jobs. Changas sued the city asserting breach of contract. The court of appeals reversed the trial court’s holding, finding that the city engaged in a proprietary function when it entered the contract, and thus, was not immune from suit.

On appeal, the Supreme Court affirmed the appellate court’s holding finding that under the Wasson IIfactors, the city was engaging in a proprietary activity. The court determined that: (1) the city’s act of entering into the contract was discretionary; (2) the contract primarily benefited the city residents and not the general public; (3) the city was acting on its own behalf and not on the State’s behalf when it entered the contract; and (4) the city’s decision to enter into the contract was not related to any governmental function. 

Tort Claims Act: Alief Indep. Sch. Dist. v. Velazquez, No. 01-22-00444-CV, 2023 WL 3555495 (Tex. App.—Houston [1st Dist.] May 18, 2023) (mem. op.). Velazquez sued the Alief Independent School District after he was struck by a vehicle driven by a school cafeteria worker who was on her way to the district office to inquire about her health benefits. The district filed a plea to the jurisdiction, claiming governmental immunity. The trial court denied the plea, and the district appealed.

The appellate court reversed and rendered, holding that the cafeteria worker was not acting within the scope of her employment by driving to ask about her benefits after her shift ended, and therefore the district’s governmental immunity was not waived under the TTCA.

Takings: City of Lake Jackson v. Adaway, No. 01-22-00033-CV, 2023 WL 3588383 (Tex. App.—Houston [1st Dist.] May 23, 2023) (mem. op.). Property owners sued the City of Lake Jackson, asserting that the city took certain flood mitigation actions that caused their properties to flood. The owners brought claims for constitutional takings, nuisance, trespass, negligence, and a statutory taking under Chapter 2007, Gov’t Code. The city claimed that because the owners had not shown causation, they had failed to allege a claim for which governmental immunity had been waived. The trial court denied the city’s plea to the jurisdiction and the city appealed.

The appellate court affirmed in part, reversed and rendered in part, and reversed and remanded in part. As to the constitutional takings claim, the court held that the owners sufficiently pleaded that the city acted with the intent necessary to state a takings claim, the owners produced evidence to raise a fact question on the element of proximate cause, and the public-necessity exception to the waiver was an affirmative defense rather than a jurisdictional defect. As to the nuisance and trespass claims, the court held that because the owners had stated a viable takings claim, they had stated viable trespass and nuisance claims. As to the claims of negligence, the court held that the waiver of immunity in the Texas Tort Claims Act did not apply because there was no fact question with regard to whether the motor-driven equipment had caused the flooding. As to the statutory takings claim, the court held that Chapter 2007 did not apply to an action by a city.

Employment: City of Houston v. Carter, No. 01-22-00453-CV, 2023 WL 3632788 (Tex. App.—Houston [1st Dist.] May 25, 2023) (mem. op.).  Carter sued the City of Houston when she was sexually harassed at work and then experienced retaliation after being transferred to another location during the sexual harassment investigation. The city filed a combined plea to the jurisdiction and motion for summary judgment, claiming governmental immunity. The trial court denied the city’s plea and the city appealed.

The appellate court reversed, holding that: (1) although Carter had exhausted her administrative remedies, she had not established a causal link between her transfer, which was the adverse employment action, and the retaliation she experienced; and (2) Carter had not established a prima facie case of sexual harassment because the conduct was not physically threatening or humiliating and did not unreasonably interfere with her work performance.

Tort Claims Act: Hall v. City of Jersey Vill., No. 01-22-00452-CV, 2023 WL 3873351 (Tex. App.—Houston [1st Dist.] June 8, 2023) (mem. op.). Hall sued the City of Jersey Village when a golf ball struck her forehead while she was working at a restaurant at a city-owned golf course. The trial court granted the city’s plea to the jurisdiction claiming governmental immunity and Hall appealed.

The appellate court reversed, holding that: (1) as to the premises liability claim, the city had provided no jurisdictional evidence negating the waiver of immunity, so the issue was pleading sufficiency and Hall should have been given an opportunity to amend her pleading; and (2) a fact issue existed with regard to whether the person who hit the golf ball that struck Hall did so in his capacity as a city employee.

Tort Claims Act: City of Arlington v. Taylor, No. 02-22-00325-CV, 2023 WL 3521891 (Tex. App.—Fort Worth May 18, 2023). This is a Texas Tort Claims Act emergency exception case stemming from a motor-vehicle accident.

Taylor sued the City of Arlington after he was involved in a car accident at a four-way intersection with Baskin, a city police officer, who was responding to an emergency call to assist another officer with an occupied stolen vehicle. The city filed a plea to the jurisdiction, which the trial court denied. The city appealed asserting that it was entitled to immunity under the emergency exception to the Texas Tort Claims Act waiver of immunity.

For an emergency exception to apply, the city has the burden of conclusively showing that Basking (1) was responding to an emergency call or reacting to an emergency situation and (2) complied with the laws applicable to emergency action, if any such law exists. The court of appeals affirmed, finding that the city did not conclusively prove that Baskin proceeded into the intersection and past the red light after slowing as necessary for safe operation.

Contracts: Tex. Disposal Sys., Inc. v. City of Round Rock, No. 03-22-00450-CV, 2023 WL 3727963 (Tex. App.—Austin May 31, 2023). In November 2021, the city council of the City of Round Rock approved a resolution authorizing the city manager to give Texas Disposal System (TDS) notice that the city would be terminating its franchise agreement for non-residential garbage and recycling collection services effective April 30, 2022, as well as a resolution approving the mayor to execute an agreement with another vendor to be city’s single service provider. In accordance with the contract terms, the city provided the 30-day notice of the contract termination in March 2022.

Upon receiving the notice, TDS sued the city and the city manager seeking declaratory and injunctive relief. After the trial court denied the first request, TDS filed an amended petition which included an ultra vires claim against the city manager. After a hearing on the second request for a temporary restraining order the trial court denied TDS’s request finding that it had not proven the required elements under the Uniform Declaratory Judgment Act (UDJA). TDS subsequently filed an interlocutory appeal raising two issues. The first issue involved the city’s charter provision prohibiting exclusive franchises for public utilities. TDS claimed the city violated its charter by granting an exclusive franchise agreement to the other vendor, which would cause TDS irreparable harm without relief. TDS also claimed the city violated the Texas Open Meetings Act (TOMA) at a July 2021 retreat in which the council first considered possible action regarding commercial garbage collection because the agenda notice was not “sufficiently specific” to give the public notice that it was considering an exclusive franchise agreement. The city responded by challenging the court’s subject matter jurisdiction for the claims under the UDJA.

Although the court of appeals determined the trial court had subject matter jurisdiction, it affirmed the trial court’s order.  The court reasoned that at the time of the hearing on the temporary restraining order, the city had provided the required termination notice under the terms of their contract, and the contract between TDS and the city was no longer in effect. Therefore, TDS failed to establish “probable, imminent, and irreparable injury in the interim that its requested injunctive relief would have prevented.”

Takings/Ultra Vires: Consol. Towne E. Holdings, LLC v. City of Laredo, No. 04-22-00130-CV, 2023 WL 3606328 (Tex. App.—San Antonio May 24, 2023). Consolidated Towne East Holdings, LLC (“Consolidated”) sued the city to develop land in the city’s extraterritorial jurisdiction. Consolidated sought water and sewer services from the city as part of its proposed development. The city required annexation before it would provide the services. Consolidated sued on the grounds that the city’s precondition for water and sewer services amounts to an unconstitutional taking and that denial of services is an ultra vires act by the city manager and the city’s director of utilities. The trial court granted the city’s summary judgment motion and dismissed Consolidated’s claims. Consolidated appealed.

The appellate court affirmed, finding: (1) the case was not ripe because whether annexation costs are roughly proportional to their asserted purposes is not ripe for resolution until those costs are authoritatively set; (2) Consolidated’s declaratory judgment claim on the city ordinance requiring annexation likewise failed because it was premature; and (3) Consolidated’s ultra vires claim failed because the city manager and director of utilities had authority in the city’s ordinances to deny providing water and sewer services to Consolidated.

Takings/Tort Claims Act: Rivera v. San Antonio Water Sys., No. 04-22-00309-CV, 2023 WL 3609233 (Tex. App.—San Antonio May 24, 2023) (mem. op.). This case has some complicated facts surrounding the plaintiffs’ claims. Ultimately, some individuals sued the San Antonio Water System (SAWS) because of damage to a park when SAWS’s contractor was performing sewer work at the park, claiming: (1) inverse condemnation; (2) waiver pursuant to the Texas Tort Claims Act (the “TTCA”); and (3) waiver under the Texas Uniform Declaratory Judgments Act (the “UDJA”). The trial court granted SAWS’s plea to the jurisdiction and the plaintiffs appealed.

The appellate court affirmed, finding: (1) the plaintiffs did not provide SAWS notice of the claim required by the TTCA; (2) because the damages alleged by plaintiffs are at best the accidental or negligent result of SAWS’s purported failure to supervise, mitigate, or mediate the contractor’s work, there is no public benefit, and the properties cannot be said to be taken or damaged for public use; and (3) the individual who conveyed the park to the city does not have a declaratory judgment claim because the deed is not an ordinance or statute that provides a limited waiver of immunity.

Tort Claims Act: City of Mesquite v. Wagner, No. 05-22-00826-CV, 2023 WL 3408528 (Tex. App.—Dallas May 12, 2023).  After being bitten by an officer’s police service dog, Anthony Wagner sued the City of Mesquite asserting a negligence claim under the Texas Tort Claims Act (TTCA). The city denied the allegations of negligence and filed a plea to the jurisdiction raising, among other defenses, governmental immunity. The trial court subsequently denied the city’s plea, and the city filed an interlocutory appeal. The city claimed that: (1) the officer was entitled to official immunity which extended to the city; (2) Wagner’s injury had not been caused by the use of tangible personal property, as required to invoke a waiver of governmental immunity; (3) the claim did not arise out of negligent acts; and (4) because the officer was responding to an emergency call, the emergency-response exception to the governmental immunity waiver applied.

Affirming the trial court’s order, the court of appeals first concluded that the city did not meet its burden to establish that the officer acted in good faith for purposes of official immunity. While the city presented an affidavit explaining the circumstances of the event, the evidence did not show that a reasonably prudent officer faced with the same circumstances could have believed the officer’s conduct was justified. The court further held the officer was in possession of the police dog and using him to track burglary suspects when the police dog bit and caused Wagner’s injuries; therefore, Wagner’s injuries were caused by the officer’s use of tangible personal property. To the city’s argument that the officer’s actions were intentional rather than negligent when using the police dog and excepted from the TTCA’s waiver of immunity, the court determined that statements made in the officer’s affidavit and his statements in an earlier incident memo raised fact issues about whether the officer was negligent. Lastly, the court concluded that even if the emergency-response exception applied to a situation involving an officer who is responding to a call for assistance, the evidence raised material fact issues as to whether the officer acted with conscious indifference or reckless disregard for Wagner’s safety.

Tort Claims Act: Martin v. Vill. of Surfside Beach, No. 14-22-00085-CV, 2023 WL 3476939, (Tex. App.—Houston [14th Dist.] May 16, 2023). On June 28, 2019, Martin was involved in a car accident with Pedro Gutierrez, an employee of the Village of Surfside Beach who was driving a village-owned truck. Martin sued Gutierrez and the village for negligence, claiming that Gutierrez failed to yield the right-of-way. The village argued that it had governmental immunity under the Texas Tort Claims Act because Gutierrez was not acting within the scope of his employment at the time of the accident. The trial court granted the village’s plea to the jurisdiction and dismissed Martin’s claims, leading to Martin’s appeal.

Governmental immunity protects political subdivisions from lawsuits unless immunity has been waived by the legislature. The Texas Tort Claims Act (TTCA) provides a waiver of immunity for cases involving the use of a motor vehicle by an employee within the course and scope of their employment. A presumption exists that a driver is acting within the course and scope of their employment when a collision occurs in an employer-owned vehicle. However, this presumption can be rebutted with evidence of personal errands or actions not in furtherance of the employer’s business. Additionally, the “coming-and-going rule” states that employees generally do not act within the course and scope of their employment when traveling to and from work. The village presented a declaration from Gutierrez stating that he was driving home after stopping to do some personal shopping when the collision occurred, which rebutted the presumption that Gutierrez was acting in the course and scope of his employment. Furthermore, the fact that Gutierrez was on call or wearing a village-branded shirt did not establish a connection to the employer’s business at the time of the accident. The court held that the evidence demonstrated that Gutierrez was not acting within the course and scope of his employment, thereby concluding that the village’s governmental immunity had not been waived. As a result, the trial court lacked jurisdiction over the plaintiff’s suit, and the granting of the village’s plea to the jurisdiction was not erroneous.

Civil Service: City of Houston v. Dunbar, No. 14-21-00570-CV, 2023 WL 3596260 (Tex. App.—Houston [14th Dist.] May 23, 2023). During a public event on September 11, 2019, at HFD Fire Station 84 featuring Houston Rockets basketball players, district chief Dunbar was present when unauthorized personnel drove the station’s high-water emergency vehicle, using its lights and sirens. Assistant fire chief Griffin later filed a complaint of misconduct against Dunbar, resulting in a three-day unpaid suspension following an internal investigation. Dunbar appealed the suspension to the civil service commission, which upheld the suspension, and then to the district court, which ruled in his favor.

The city appealed the district court’s decision, arguing that the district court’s judgment is erroneous because (1) substantial evidence supported the commission’s order to suspend Dunbar, and (2) the commission’s order was free from any illegality. In its analysis, the appellate court emphasized the substantial evidence standard, in which the trial court may not substitute its judgment for that of the agency on controverted issues of fact but must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them. The appellate court determined that there is more than a scintilla of evidence to support the commission’s order upholding Dunbar’s suspension, siding with the city. A public employer’s action can be tainted by illegality if the employer’s action is arbitrary or capricious, or a clear abuse of authority. Dunbar’s arguments that the commission’s decision was tainted by illegality stemmed from alleged notice issues. The court was not persuaded by these arguments, reversed the district court’s judgment, and affirmed the commission’s order.

Note:  Included opinions are from May 11, 2023, through June 10, 2023.

KP-444 (Tax Rate): A truth-in-taxation provision, Texas Tax Code section 26.07 requires a municipality to hold an automatic election if it seeks to increase its tax rates above a specified amount. It does not authorize a municipality to “earmark” use of a voter-approved increase in its maintenance and operation property tax revenue for debt service.

A court would likely conclude that an agreement wherein a municipality binds itself to transfer in perpetuity an increase in its maintenance and operations property tax and is not subject to an annual appropriation and is prohibited by article XI, section 5 as a pecuniary obligation imposed by contract with no right to terminate at the end of each budget period.

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

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

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

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

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

The recipients of these awards will be honored at the TCAA Summer Conference. In addition, TCAA will provide complimentary registration for the conference. The deadline to submit a nomination is April 21, 2023. The criteria and the nomination form are available here.

Call For Award Nominations: TCAA Outstanding Mentor Award

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

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

The recipient of this award will be honored at the TCAA Summer Conference. In addition, TCAA will provide complimentary registration for the conference. The deadline to submit a nomination is April 21, 2023. The criteria and the nomination form are available here.

SAVE THE DATE – 2023 TCAA Summer Conference

The 2023 TCAA Summer Conference at the Westin in San Antonio will take place June 14-16, 2023. Conference registration and hotel block reservations will open this month. Please watch your inbox for more details next week!

88^th Legislative Session

The 2023 legislative session began on January 10. Stay informed by checking TML’s Legislative Update weekly for summaries of city-related bills and associated articles.

TCAA Online Membership Directory

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here.

IMLA Membership

Membership with IMLA doesn’t just mean discounts to their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2022 Summer Conference and 2022 Fall Conference

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

Recent Texas Cases of Interest to Cities

Note: Included cases are from February 11, 2023 through March 10, 2023.

Tort Claims Act: Rattray v. City of Brownsville, No. 20-0975, 2023 WL 2438952 (Tex. Mar. 10, 2023). This is a Texas Tort Claims Act (“TTCA”) case regarding property damage arising from the operation or use of motor driven equipment in which the Supreme Court of Texas reversed and remanded.

Homeowners brought a negligence action against the city alleging that the city’s negligent use of motor-driven equipment to open and close sluice gates and to pump water resulted in stormwater accumulation that flooded their homes. The trial court denied the city’s plea to the jurisdiction and the court of appeals reversed and remanded. The homeowners filed petition for review, which was granted by the Supreme Court of Texas.

The court determined that the gate was used to control water flow in the resaca, the city closed the gate, and it was the use of the gate that immediately preceded and allegedly caused the flooding. As a result, the court held that the sluice gate was put to “operation or use” within meaning of TTCA and the homeowners met their burden at motion to dismiss stage to create a fact issue on whether their property damage arose from city’s closure of sluice gate.

Pension Funds: McGarry v. Houston Firefighters’ Relief & Ret. Fund, No. 01-21-00624-CV, 2023 WL 2415595 (Tex. App.—Houston [1st Dist.] Mar. 9, 2023). McGarry sued the Houston Firefighters’ Relief and Retirement Fund to receive the pension of her husband under her informal marriage to him. The Fund requires evidence of the informal marriage, but before McGarry submitted the requested documentation, the board changed its policies with regard to informal marriages such that McGarry was no longer eligible to receive the pension. The trial court granted the Fund’s jurisdictional pleadings and dismissed McGarry’s claims.

The appellate court reversed and remanded, holding that: (1) the trial court had jurisdiction to hear McGarry’s claim that the members acted beyond its authority by refusing to process and render a decision granting or denying her application for survivor’s benefits; (2) the trial court had jurisdiction to hear McGarry’s claim that the board acted beyond its authority by applying the revised policies and procedures concerning proof of an informal marriage to her application for benefits; and (3) the trial court had jurisdiction to hear McGarry’s claim that the Fund’s enabling statute is unconstitutional to the extent it authorizes the board to refuse to process her application or apply the revised policies to her application for benefits.

Tort Claims Act: City of Wichita Falls v. Preston, No. 02-22-00265-CV, 2023 WL 2033775 (Tex. App.—Fort Worth Feb. 16, 2023) (mem. op.). This is an interlocutory appeal on a plea to the jurisdiction under the Texas Tort Claims Act (TTCA).

Preston boarded one of the City of Wichita Falls’s buses and was on her way to sit down when she fell and broke her right ankle. Preston sued the city for negligence under the TTCA, alleging that the city’s bus driver had negligently operated the bus, thereby proximately causing Preston’s injuries. The city filed a plea to the jurisdiction, arguing that the city’s immunity had not been waived under the TTCA and relying on the recording of the incident by the bus’s proprietary surveillance camera system. Preston countered the video with a sworn declaration, and the trial court denied the city’s plea. The city filed an accelerated interlocutory appeal on two issues: (1) Preston’s declaration failed to raise a fact issue to sufficiently controvert the city’s video evidence of causation; and (2) there is no causal nexus between the bus’s alleged negligent operation and Preston’s injuries, relying on its video to support these arguments.

Because the video does not conclusively show that Preston’s injuries were caused by another passenger’s act, the court of appeals affirmed the trial court’s order and remanded the case for further proceedings.

Governmental Immunity: San Antonio Water Sys. v. Matiraan, Ltd., No. 04-22-00138-CV, 2023 WL 2290301 (Tex. App.—San Antonio Mar. 1, 2023). This case involves a piece of property for which the San Antonio Water System (SAWS) had a conservation easement because the property was on an Edwards Aquifer recharge zone. The city subsequently annexed the property. A company later purchased the property and petitioned to rezone the property to allow for quarrying. The company claimed it had no knowledge of the conservation easement. The city refused the zoning application based on the conservation easement. The company filed a petition to terminate the conservation easement and SAWS filed a plea to the jurisdiction, which the trial court denied.

On appeal, the court analyzed the Wasson factors and found in SAWS’s favor. The court found that when entering into the easement: (1) SAWS was acting in a discretionary capacity, weighing in favor of the company; (2) the easement benefited the public, weighing in SAWS’s favor; (3) SAWS was acting on behalf of the state, weighing in SAWS’s favor; and (4) SAWS was performing an enumerated governmental function of reservoirs. The appellate court reversed the denial of the plea to the jurisdiction and ordered the trial court to dismiss the case but also to determine any relief for which SAWS may be entitled, including attorneys’ fees and costs.

Employment: United Indep. Sch. Dist. v. Mayers, No. 04-22-00424-CV, 2023 WL 2004407 (Tex. App.—San Antonio Feb. 15, 2023). The plaintiff sued her employer, the school district, for discrimination based on sex, national origin, and age and claimed her employer retaliated against her. In her second amended petition, she sued under the Texas Commission on Human Rights Act, the Age Discrimination in Employment Act of 1967, and Title VII of the Civil Rights Act of 1964. The school district filed a plea to the jurisdiction on the grounds that the plaintiff: (1) filed her state law TCHRA claims after the expiration of the applicable two-year statute of limitations; (2) failed to comply with exhaustion of remedies requirements applicable to her TCHRA, Title VII, and ADEA claims; and (3) did not adequately plead her Title VII and ADEA claims until after the expiration of a deadline imposed by federal law. The trial court denied it and the school district appealed.

On appeal, the court found that: (1) the TCHRA were time-barred as a matter of law; (2) the plaintiff filed her Title VII sex discrimination and retaliation claims within 90 days of receiving her right-to-sue letter from the EEOC; and (3) the plaintiff failed to exhaust her administrative remedies for her federal national origin and age discrimination claims. The appellate court reversed and rendered judgment on the plaintiff’s TCHRA, age discrimination, and national origin claims. The appellate court affirmed the denial on the plea for the plaintiff’s claims of sex discrimination and retaliation under Title VII.

Takings: Tex. Dep’t of Transp. v. Robert Dixon Tips Properties, LLC, No. 04-21-00430-CV, 2023 WL 2396807 (Tex. App.—San Antonio Mar. 8, 2023) (mem. op.). The plaintiff sued TxDOT for an unlawful taking for a portion of a road, requested a declaration that the portion a road was not a public road, and sought injunctive relief barring construction on the disputed portion. TxDOT filed a no-evidence motion for summary judgment and motion to dismiss for lack of subject-matter jurisdiction, arguing that the disputed portion of the road was publicly dedicated. The trial court denied both and TxDOT appealed.

On appeal, the court found: (1) the original plat made an express offer of dedication for public use and the offer was accepted; and (2) the trial court lacked subject matter over the declaratory and injunctive relief claims. The appellate court reversed the trial court’s order and rendered judgment dismissing all of the plaintiff’s claims against TxDOT with prejudice.

Eviction Jurisdiction: Town of Anthony v. Lopez, No. 08-22-00052-CV, 2023 WL 2189504 (Tex. App.—El Paso Feb. 23, 2023). In an eviction action, the Town of Anthony, Texas, filed a suit against Robert Lopez for allegedly failing to pay rent on a leased property. The justice court ruled in favor of the town, but Lopez appealed to the county court, claiming that the justice court lacked jurisdiction as he had exercised his purchase option under the lease/purchase agreement. The county court agreed with Lopez, stating that a title issue must be resolved before determining possession of the property. The town appealed the decision. The appellate court found that there was sufficient evidence to suggest a question of equitable title, with the lease/purchase agreement, Lopez’s “Down Payment” check, and his payments exceeding the lease amount. As a result, the justice court could not presume jurisdiction. The court overruled the town’s sole issue on appeal and affirmed the county court’s order granting Lopez’s plea to the jurisdiction.

Disaster Orders: Abbott v. City of El Paso, No. 08-21-00149-CV, 2023 WL 2265168 (Tex. App.—El Paso Feb. 28, 2023). On July 29, 2021, the Governor of Texas issued GA-38, an executive order prohibiting local governments from mandating face coverings during the COVID-19 pandemic. El Paso filed a lawsuit against the Governor, arguing that GA-38 was outside his authority under the Texas Disaster Act and violated the Texas Constitution. The trial court granted a temporary injunction against enforcing parts of GA-38, leading to this interlocutory appeal. In his appeal, the Governor asserted that the trial court abused its discretion by granting El Paso’s request to temporarily enjoin enforcement of GA-38. He argued that his authority under the Texas Disaster Act allows him to prohibit local governments from implementing face-covering mandates and that his orders preempt local orders. The court disagreed, stating that the Disaster Act does not provide clear guidance on how to resolve conflicts between the Governor’s orders and orders of local authorities. Ultimately, the court concluded that the Governor’s orders do not automatically supersede local orders. With regard to the Governor’s argument that he can suspend local health and safety laws under the Texas Disaster Act, the court also disagreed, stating that the statutes he attempted to suspend are not “regulatory” but rather “grant-of-authority” statutes, which the Governor is not authorized to suspend. Furthermore, the Disaster Act distinguishes between state and local matters, and the court found that the Governor acted ultra vires in suspending various health and safety laws, and the trial court did not err in finding that he acted illegally. Finally, the court pointed out that if it Disaster Act allows the Governor to suspend any and all laws that authorize a city to impose a mask requirement, then the statute itself would violate the Separation of Powers and Suspension Clauses of the Texas Constitution. Because of the foregoing, the appellate court affirmed the trial court’s order granting El Paso a temporary injunction and denial of the Governor’s plea to the jurisdiction.

Employment Discrimination: Cnty. of El Paso v. Flores, No. 08-22-00060-CV, 2023 WL 2435669 (Tex. App.—El Paso Mar. 9, 2023). Flores, a Veterans Assistance Manager, sued the County for discrimination based on sex and disability after his termination in February 2017. The trial court denied the County’s plea to the jurisdiction, leading to an interlocutory appeal. The appellate court determined that Flores met the jurisdictional deadline and found evidence supporting his disability discrimination claim. However, it concluded that he failed to establish a prima facie case for his sex-discrimination claim and retaliation claim based on a complaint in January 2017. The court affirmed the trial court’s order denying the County’s plea to the jurisdiction for Flores’s disability discrimination claim, but reversed and dismissed the sex-discrimination and retaliation claims.

Public Property Finance Act: City of Ames v. City of Liberty, No. 09-22-00092-CV, 2023 WL 2180967 (Tex. App.—Beaumont Feb. 23, 2023) (mem. op.). The City of Liberty sued the City of Ames over a contract under which Ames provided wastewater collection services for Liberty, alleging Liberty had failed to pay service charges due under the contract. Ames filed a plea to the jurisdiction, claiming governmental immunity, and the trial court denied the plea.

The appellate court affirmed the trial court’s denial of Ames’s plea to the jurisdiction, holding that: (1) a contract for wastewater services is a contract for “services” within the meaning of the Public Property Finance Act’s waiver of immunity; (2) the service charges were amounts due and owing under the contract; (3) the contract contained the essential terms of the parties’ agreement; (4) there remained a fact issue as to whether the contract was properly executed; and (5) Chapter 271 applies to a contract between two governmental entities.

Property Tax Refunds: Sundial Owner’s Ass’n, Inc. v. Nueces County, No. 13-21-00069-CV, 2023 WL 2414898 (Tex. App.—Corpus Christi–Edinburg Mar. 9, 2023) (mem. op.). Sundial Owner’s Association paid property tax on behalf of the owners of the units comprising the condominium and subsequently requested a refund from each taxing unit for the years 2010-2015, arguing that it was not the owner of the condominiums and therefore not liable for the tax. The trial court granted summary judgment in favor of the taxing units for tax years 2010, 2011, and 2012 based on Sundial’s failure to timely request a refund and for tax years 2013 and 2014 based on Sundial’s failure to show the tax was paid erroneously.

The appellate court affirmed the judgement in part and reversed in part, holding that: (1) the plain language of statute provides that a right to a refund is waived if a refund request is not made within three years of payment of the tax; and (2) Sundial paid the taxes voluntarily and did not submit evidence to show the payment was “erroneous” as required by statute. The appellate court remanded for further proceedings as to tax year 2012. 

Tort Claims Act: City of Houston v. Gonzales, No. 14-21-00482-CV, 2023 WL 2259766 (Tex. App.—Houston [14th Dist.] Feb. 28, 2023) (mem. op.). In January 2016, while driving with his training officer, Houston Police Department probationary peace officer Daniel Iwai collided with the rear bumper of another vehicle while responding to a priority-two call for assistance. Jonathan Gonzalez, who was in the other vehicle, sued the city for injuries he sustained in the collision and was awarded $250,000 at the conclusion of trial. Houston raised several issues on appeal, but the only one reached by the court was regarding an abuse of discretion by the trial court for not dismissing the case for lack of jurisdiction. Generally, cities have immunity from liability and lawsuit unless that immunity has been waived. The Texas Tort Claims Act provides a limited waiver of governmental immunity for torts committed by city employees “acting within the scope of their employment” arising from the operation or use of motor-driven vehicles under certain circumstances. However, an exception to this waiver exists when a city employee is responding to an emergency. Houston argued that it established the emergency response exception and that Mr. Gonzalez failed to present evidence that Officer Iwai was responding to an emergency. The court agreed, dismissed the case for lack of jurisdiction, and reversed the trial court’s judgment.

Tort Claims Act: City of Houston v. Fisher, No. 14-21-00573-CV, 2023 WL 2322971 (Tex. App.—Houston [14th Dist.] Mar. 2, 2023) (mem. op.). Officer Pinkney of the Houston Police Department was involved in a car crash with Fisher while on duty. Pinkney admitted the crash was his fault as he was distracted while trying to put on his seatbelt. Fisher filed a lawsuit against the city alleging negligence, negligence per se, and gross negligence. The city claimed governmental immunity, arguing that Officer Pinkney was not acting within the scope of his employment during the crash. Fisher responded that a limited waiver of immunity applies as Officer Pinkney was an on-duty officer at the time of the collision. The trial court denied the city’s plea to the jurisdiction, leading the city to file a timely notice of interlocutory appeal. The Texas Tort Claims Act provides a limited waiver of governmental immunity if certain conditions are met. The city argued that the trial court should have granted its plea to the jurisdiction as Officer Pinkney was not acting within the scope of his employment during the accident since he was returning from lunch and had not yet performed any official duties. The court examined what the police officer was doing and why he was doing it, considering the connection between the employee’s job duties and the alleged tortious conduct. As a patrol officer, Pinkney’s responsibilities resumed once he got back to his patrol car. The court could not conclude that the city had rebutted the presumption that Officer Pinkney was acting within the scope of his employment at the time of the crash; therefore, the court rejected the City’s contentions and affirmed the trial court’s order denying the city’s plea to the jurisdiction.

Breach of Contract: City of Houston v. James Construction Group, LLC, No. 14-21-00322-CV, 2023 WL 2423127 (Tex. App.—Houston [14th Dist.] Mar. 9, 2023) (mem. op.). The City of Houston signed three contracts with James Construction Group (JCG) for repairs at Bush Intercontinental Airport. The completion of the work was significantly delayed. JCG claimed, in part, that the city’s mismanagement caused delays and increased costs, while the city argued that JCG’s workers were inexperienced and used inadequate materials. The contract called for the City Engineer to resolve all claims, which the City Engineer attempted to do. After some back-and-forth concerning change orders and contract adjustment, JCG sued the city for an additional $13,416,633 after receiving payments from the City. Houston filed a plea to the jurisdiction and a motion for summary judgment on res judicata grounds, due to the City Engineer’s involvement in the claim resolution. The trial court denied the city’s motions, and Houston appealed. The city’s motion summary judgment was based on its assertion of res judicatabut did not make jurisdictional assertions based on immunity and could therefore not be construed as a plea to the jurisdiction or any other jurisdictional challenge. Because the order denying summary judgment was neither a final judgment nor an order falling within the scope of an interlocutory appeal statute, the appellate court lacked jurisdiction over that aspect of the appeal. With regard to the city’s plea to the jurisdiction, the appellate court reversed the trial court, because JCG failed to plead or prove misconduct by the City Engineer, which was required to waive the city’s immunity to suit. Ultimately, the court reversed the trial court’s ruling on the city’s plea to the jurisdiction and dismissed related claims.

Note:  Included opinions are from February 11, 2023 through March 10, 2023.

KP-432 (Conflicts): Tax Code section 6.43 governs an appraisal review board’s employment of personnel and expressly authorizes an appraisal review board, not a tax appraisal district, to utilize the legal services of the county attorney. A court would likely conclude that subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district.

KP-433 (City Council Terms): A ballot measure may be inadequate when it misleads the voters by omitting certain chief features that reflect its character and purpose. A court would likely conclude the length of terms of office of the mayor and aldermen, not the enabling date, was the chief feature of the measure submitted to voters and that the City of Combes’ May 2022 special election was not invalid because of the absence of that date in the Proposition language.

When a municipality sets the terms of office at more than two but not more than four years under article XI, section 11 of the Texas Constitution, it must elect members of its governing body by majority vote. To the extent the City did not have the necessary changes in place to implement a majority system and the candidates were not elected by majority vote, a court would likely conclude the candidates elected at the May 2022 general election serve two-year terms.

KP-434 (Conflicts): A court would likely conclude that the common-law doctrine of incompatibility bars a person from simultaneously serving as a volunteer fire fighter for an emergency services district and a commissioner on the ESD’s board of commissioners.

KP-437 (Public Facilities Corporations): Local Government Code chapters 303 and 375 respectively govern public facility corporations (PFCs) and municipal management districts (MMDs), including authorizing the creation of a PFC by a MMD. A court could conclude that, as a general matter, the two chapters allow a PFC to acquire real estate for leasehold outside its geographic boundaries. Whether a PFC should have this authority and the limitations of such authority are policy questions for the Legislature, especially when impacting taxing authority for another district.

SAVE THE DATE – 2023 TCAA Summer Conference

The 2023 TCAA Summer Conference at the Westin in San Antonio will take place June 14-16, 2023.

88^th Legislative Session

The 2023 legislative session began on January 10. Stay informed by checking TML’s Legislative Update weekly for summaries of city-related bills and associated articles.

TMCEC’s 2023 Prosecutor Seminar

The Texas Municipal Courts Education Center’s 2023 Prosecutor Seminar will take place on February 22-24, 2023 at the Holiday Inn Riverwalk in San Antonio. For more information, see this brochure and register here.  

TCAA Online Membership Directory

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here.

IMLA Membership

Membership with IMLA doesn’t just mean discounts to their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2022 Summer Conference and 2022 Fall Conference

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

Note: Included cases are from January 11, 2023 through February 10, 2023.

Qualified Immunity: Bernabe v. Rosenbaum, No. 21-10396, 2023 WL 181099 (5th Cir. Jan. 13, 2023). Bernabe sued the City of Arlington and two police officers for their use of tasers on him after a foot chase. The trial court granted the officers’ motion for summary judgment based on qualified immunity and Bernabe appealed.

The appellate court affirmed the trial court, holding that Bernabe had failed to meet his burden after the defendants claimed qualified immunity because he failed to show that use of the taser was objectively unreasonable.

Tort Claims Act: Laborfest, L.L.C. v. City of San Antonio, No. 22-50038, 2023 WL 1434272 (5th Cir. Feb. 1, 2023). Laborfest sued the City of San Antonio for breach of contract after ticket sales for a planned music festival fell short of expectations, requiring Laborfest to cancel the festival. The trial court granted the city’s motion for summary judgment based on governmental immunity, and Laborfest appealed.

The appellate court affirmed the trial court’s grant of summary judgment, holding that a contract for a music festival to take place in the city’s convention center is defined as a governmental function under the Texas Tort Claims Act rather than a proprietary function, so immunity was not waived.

Note: Included cases are from January 11, 2023 through February 10, 2023.

Tim Cole Act: Brown v. City of Houston, No. 22-0256, 2023 WL 1486228 (Tex. Feb. 3, 2023) (mem. op.).  In this case of first impression, the Supreme Court answers a certified question from the Fifth Circuit Court of Appeals related to compensation for wrongful imprisonment under the Tim Cole Act (Act).

Brown, a former prisoner, brought a Section 1983 action against the city, county, police detective, and police officers seeking compensation for imprisonment for wrongful conviction for capital murder of a police officer during a robbery. While the action was pending, Brown received compensation under the Act through a state administrative process. The United States District Court for the Southern District of Texas granted summary judgment to the city as to the Section 1983 claim. Brown appealed. The Fifth Circuit Court of Appeals certified a question of state law to the Texas Supreme Court on whether the Act, which does not allow a person who receives compensation under the Act to “bring any action involving the same subject matter … against any governmental unit or an employee of the governmental unit” bars a person from maintaining a suit after receiving compensation under the Act.

The Supreme Court affirmatively certified the question, finding that the Act bars maintenance of a lawsuit involving the same subject matter against any governmental units or employees that was filed before the claimant received compensation under the Act.

Tort Claims Act: Christ v. Tex. Dep’t of Transp., No. 21-0728, 2023 WL 1871560 (Tex. Feb. 10, 2023).  This is a premise liability case in which the Supreme Court affirmed the Court of Appeals decision.

Motorists injured as result of head-on collision in construction zone brought action against Texas Department of Transportation and others (collectively Department), alleging premises liability based on condition of construction zone. The trial court denied the Department’s plea to the jurisdiction and no-evidence motion for summary judgment. The Department filed an interlocutory appeal. The appellate court reversed and dismissed for want of jurisdiction. The motorists’ petition for review was granted.

The Supreme Court held that use of painted stripes and buttons to separate opposing lanes of traffic when engineer-sealed traffic control plan called for concrete barriers did not create an unreasonably dangerous condition that would allow the motorists to invoke waiver of sovereign immunity under the Texas Tort Claims Act.

Enforcement of Deed Restrictions: Creative Chateau, LLC v. City of Houston, No. 01-21-00327-CV, 2023 WL 162741 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023.) (mem. op.). The City of Houston sued Creative Chateau after Creative Chateau operated a photography business out of a property in violation of the applicable deed restrictions. The trial court granted the city’s motion for summary judgment and granted a permanent injunction to prohibit Creative Chateau from operating the business out of the property, and Creative Chateau appealed.

The appellate court affirmed the trial court’s grant of the city’s motion for summary judgment, holding that: (1) because Creative Chateau’s evidence was filed with the court by a non-attorney, it was incompetent and could not be considered by the trial court; (2) where the deed restrictions expressly prohibited the operation of a business out of the property, operating the photography business was a substantial violation of the deed restrictions; and (3) a change in circumstances after the trial court’s initial order does not qualify as newly discovered evidence to support a motion for a new trial.

Inverse Condemnation: City of Houston v. Commons of Lake Houston, Ltd., No. 01-21-00369-CV, 2023 WL 162737 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023.) (mem. op.). The Commons sued the City of Houston for a regulatory taking when the city amended its floodplain ordinance, making the Commons’ development financially unfeasible. The trial court denied the city’s plea to the jurisdiction and the city appealed.

The appellate court reversed the order of the trial court and dismissed the Commons’ takings claim, holding that: (1) floodplain regulations that track the National Flood Insurance Program cannot constitute a taking; and (2) because reasonable minds could conclude that the amended ordinance’s elevation requirements were substantially related to the health, safety, or general welfare of the citizens and were reasonable, the regulation was a valid exercise of the city’s police power and did not constitute a taking.

Zoning Variance: Martinez v. Northern., No. 01-22-00435-CV, 2023 WL 162743 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023.) (mem. op.). Martinez and two neighborhood associations sued various city officials and entities, including the City of Houston, the City of Houston Housing Authority, and the City of Houston Planning Commission to enjoin the development of certain affordable housing, alleging that the city granted zoning variances to the affordable housing development in violation of the city’s zoning ordinances. The trial court granted the city’s plea to the jurisdiction and Martinez appealed.

The appellate court affirmed the trial court’s judgment of dismissal, holding that the city and city officials were protected by governmental immunity because: (1) the waiver of immunity in the Uniform Declaratory Judgment Act did not apply because the claims did not challenge the validity of Houston’s zoning ordinance; and (2) the city officials had not acted ultra vires because the grant or denial of a variance was within their discretion. 

Tort Claims Act: City of Arlington v. Wesson-Pitts, No. 02-22-00326-CV, 2023 WL 415965 (Tex. App.—Fort Worth Jan. 26, 2023) (mem. op.). Stacy Wesson-Pitts and Benard Pitts were involved in a car accident with another vehicle near an intersection of two streets. They sued the city alleging that the city was liable for their damages stemming from the car accident because the city had failed to properly maintain a yield sign near the intersection — a yield sign that had previously been located near the intersection but that was missing at the time of the accident. The city filed a plea to the jurisdiction, arguing that it was immune from the lawsuit. Following a hearing, the trial court denied the city’s plea to the jurisdiction.

The city appealed, arguing that the trial court erred by denying its plea to the jurisdiction because: (1) its discretionary decisions as to whether and when to install a yield sign do not waive governmental immunity; and (2) it had no obligation to maintain or replace the yield sign because it neither owned nor exercised control over the sign.

The Court of Appeals determined that there was a fact issue as to whether the city had exercised control over the yield sign and knew of the dangerous condition posed by the missing yield sign but did not correct it within a reasonable time after notice. Accordingly, the court affirmed the trial court’s ruling.

Jurisdiction: Mushtaler v. City of Austin, No. 03-22-00655-CV, 2023 WL 1112520 (Tex. App.—Austin Jan. 31, 2023) (mem. op.). Claiming that the city of Austin’s easements on their properties had “expired due to expiration, frustration of purpose, and abandonment,” Jennifer and Trent Mushtaler and Joshua Bezoni sued the city of Austin seeking declaratory relief. The trial court subsequently denied their summary judgment motion, and the Mushtalers and Bezoni appealed the decision to the court of appeals indicating that because the denial of their motion was dispositive to their remaining claims, the court of appeals had jurisdiction over the matter. The appellate court held that because the denial of a motion for summary judgment was an interlocutory ruling and did not dispose of their claims which remained pending in the trial court, it lacked jurisdiction and dismissed the appeal.

Tort Claims Act: The City of Austin v. Amy-Marie Howard, No. 03-22-00439-CV, 2023 WL 1869645 (Tex. App.—Austin Feb. 10, 2023). While attempting to restrain a suspect, Dylan Woodburn, Austin Police Department Officer Patrick Spradlin’s duty belt malfunctioned and came loose. During this time, the officer attempted to resecure his belt and the suspect escaped to a nearby restaurant and killed Johnathon Aguilar by stabbing him with a freshly sharpened knife a salesman left on the counter. Amy-Marie Howard sued the City of Austin, among others, under the Texas Wrongful Death Act and claimed the city’s governmental immunity was waived under the Texas Tort Claims Act (TTCA) because Aguilar’s death was proximately caused by the condition or use of tangible personal property, namely the duty belt. The city subsequently filed a plea to the jurisdiction, which the trial court denied. The appellate court, in reversing the trial court’s order, concluded that: (1) the use or condition of Officer Spradlin’s duty belt was too causally attenuated to Woodburn’s stabbing of Aguilar and could not be considered the proximate cause of his death; and (2) it was not reasonably foreseeable that the officer’s belt malfunctioning would cause Aguilar to suffer this type of harm.

Contracts: City of San Antonio v. DHL Express (USA), Inc., No. 04-22-00603-CV, 2023 WL 380341 (Tex. App.—San Antonio Jan. 25, 2023) (mem. op.). The city executed a lease agreement with DHL for use of the city’s airport that was to “only be used for aeronautical activities or those that directly support aeronautical activities.” The city notified DHL it was breaching the agreement because its flights landed in another city and then DHL shipped the items via truck to the city’s airport for sorting. DHL sued the city for declaratory judgment and the city filed a plea to the jurisdiction on the grounds of governmental immunity. The trial court denied the plea and the city appealed.

In overturning the trial court, the appellate court found that: (1) entering into the airport lease agreement was a governmental function; (2) the lease agreement was not one for goods and services to support a waiver under Chapter 271; and (3) the city’s immunity was not waived for a declaratory judgment action. The appellate court reversed the trial court’s order and rendered judgment for the city.

Employment: City of Fort Worth v. Birchett, No. 05-22-01170-CV, 2023 WL 1501596 (Tex. App.—Dallas Feb. 3, 2023) (mem. op.). William Birchett sued the city of Fort Worth under the Texas Whistleblower Act (Government Code Section 554.002) claiming he was wrongfully terminated after he reported cybersecurity violations the city failed to remedy to law enforcement agencies. In its first plea to the jurisdiction, the city argued, among other things, that Birchett did not sufficiently allege a causal connection between his reporting the violations and his termination. The court of appeals, in denying the city’s first plea, explained that Birchett was not required to present evidence that his supervisor, Kevin Gunn, knew of his reports when Gunn terminated him, instead the city was required to present evidence rebutting the presumption of causation under section 554.004(a). The city subsequently filed a second plea to the jurisdiction providing proof that Gunn had no knowledge of Birchett’s reports and that Birchett was instead terminated for other reasons. Concluding that the second plea to the jurisdiction amounted to a motion to reconsider because it also addressed the sufficiency of the evidence on causation which had already been determined in the first plea, the appellate court lacked jurisdiction and dismissed the second plea.

Inverse Condemnation: The City of Dallas v. Millwee-Jackson Joint Venture and Stephen M. Millwee, No. 05-20-00611-CV, 2023 WL 1813499 (Tex. App.—Dallas Feb. 8, 2023). Stephen M. Millwee sued the city of Dallas after it began development of an arena project, which included abandoning and demolishing a street (Alamo Street) in which Millwee had an easement and construction that resulted in blocking access to and occupying portions of his property. In his lawsuit, Millwee sought an injunction pursuant to Civil Practice and Remedies Code Section 65.015 for the city’s street closure, a declaratory judgment, and claims for inverse condemnation. Following a bench trial, the court denied Millwee’s inverse condemnation claim and combined his declaratory judgment claim with its final judgment granting relief on his section 65.015 claim. In its final judgment, the court ordered the city to either open the street at issue and maintain it as a public street or compensate Millwee through a condemnation suit for the taking of his property rights caused by the city’s abandonment of the street.

The city appealed, challenging: (1) the court’s subject matter jurisdiction to enter the permanent injunction, claiming Millwee lacked standing where evidence was insufficient to show a concrete injury; (2) the legal basis for the permanent injunction where Millwee failed to show evidence of a wrongful act by the city; and (3) the court’s granting of a partial summary judgment on the declaratory judgment claim under Local Government Code Section 245.0002(a), which concluded that the boundaries drawn in a 2001 FEMA 100-year floodplain applied to Millwee’s property.

Affirming the trial court’s judgment, the court of appeals first addressed the city’s subject matter jurisdiction concluding that because Millwee properly alleged that he owned land abutting Alamo Street, the city closed the street, and as a result, his property could no longer be developed, and he did not acquiesce or receive compensation from the city, Millwee had standing under Civil Practice and Remedies Code Section 65.015. Additionally, the court determined that the evidence at trial was sufficient to show Alamo Street remained closed and the city failed to offer Millwee compensation constituting a wrongful act, which supported the trial court’s decision in granting injunctive relief. Lastly, the court agreed that Millwee, by offering substantial evidence of an original 1983 application for a permit to develop the property commercially, was entitled to a summary judgment order declaring which floodplain map would govern the development of his property pursuant to Local Government Code Section 245.0006(a) and thereby determining which regulations would guide the measure of damages if any were to be awarded.

With regard to Millwee’s cross appeal challenging the trial court’s denial of his inverse condemnation claim, the court of appeals declined to address the substantive merits reasoning that Millwee had already been granted a superior recovery by the trial court in ordering the city to either reopen and maintain the street at issue or to initiate a condemnation suit to compensate him for the street closure.

Employment: City of Fort Worth v. Joel Fitzgerald, No. 05-22-00327-CV, 2023 WL 1813525 (Tex. App.—Dallas Feb. 8, 2023) (mem. op.). Joel Fitzgerald sued the city of Fort Worth for wrongful termination after he was fired from his position as Chief of Police. In his suit against the city, Fitzgerald claimed that his liberty interests were violated under Art. I, Section 19 of the Texas Constitution. Specifically, he argued that by characterizing his discharge as “general” instead of “honorable,” holding a press conference disparaging his name, and releasing his termination paperwork to the press, the city discharged him under “stigmatizing circumstances” and was required to provide him with a hearing to clear his name. In addition, Fitzgerald claimed that because he was not an “at-will” employee he had a right to continued employment, and his termination without a public hearing was an unconstitutional violation of his property interest rights under Art. I, Section 19 of the Texas Constitution and a violation of Local Government Code Section 143.013.

The city, in response, filed a plea to the jurisdiction arguing Fitzgerald did not establish a waiver of the city’s governmental immunity. After a hearing on the city’s plea, the trial court ruled in favor of Fitzgerald, and the city appealed.

In its decision, the court of appeals first addressed Fitzgerald’s liberty interest claim and determined that none of the statements in his termination paperwork or at the press conference were so stigmatizing (i.e., implicating his character for honesty or accusing him of criminal activity) as to create a “badge of infamy.” In addition, although the city filed Fitzgerald’s separation as a “general” discharge with the Texas Commission on Law Enforcement when it completed the required F-5 form, Fitzgerald’s record was later changed to “honorable” after a favorable hearing outcome with the State Office of Administrative Hearings. With regard to his property interest claim, the court determined no employment agreement existed and the evidence did not show that Fitzgerald was not an at-will employee. As a result, the court reversed the trial court’s order denying the city’s plea to the jurisdiction.

Employment Discrimination: El Paso Cnty. Water Improvement Dist. No. 1 v. Trevizo, No. 08-21-00206-CV, 2023 WL 1069706 (Tex. App.—El Paso Jan. 27, 2023). Rogelio Trevizo worked as an equipment operator for the El Paso County Water Improvement District No. 1 (District) for over a decade operating heavy equipment and performing a variety of manual labor. He developed a blood clot in his foot which led to numbness in his left leg, causing him to have to take time away from his job. Trevizo returned to light duty and then to full duty, and alleged that after returning to full duty, he was given more physically demanding work to do and older, broken equipment to do it with. He complained to his supervisors and to the EEOC, and after a number of incidents, his employment with the district was terminated. Trevizo filed a lawsuit against the District alleging discrimination based on age and disability, retaliation and creating a hostile work environment. The District filed a plea to the jurisdiction and a motion for summary judgment based on a lack of jurisdiction. The trial court denied the plea and the motion, and the District appealed that order. After consideration of the alleged facts, the appellate court held that Trevizo failed to properly state a case for age or disability discrimination, retaliation, and hostile work environment. The court dismissed most of the claims but remanded the case to the trial court to allow Trevizo to replead facts related to his age discrimination claims.

Jurisdiction: Jaramillo v. City of Odessa Animal Control, No. 11-23-00012-CV, 2023 WL 1826753 (Tex. App.—Eastland Feb. 9, 2023) (mem. op.). After animal control officials with the city of Odessa determined her dogs were dangerous, Allie Jaramillo filed a pro se notice of appeal with the court of appeals citing to Health and Safety Code § 822.0421 and claiming the court had jurisdiction to review interlocutory orders and judgments in violation of her due process rights. Dismissing the appeal for lack of jurisdiction, the court of appeals concluded that: (1) a municipal court judgment in this case would have to be appealed to the county courts at law of Ector County that have criminal appellate jurisdiction pursuant to Section 30.00771 of the Government Code; (2) no specific statutory authority permits the appellate court to hear interlocutory appeals from municipal court orders; and (3) the Health and Safety Code does not authorize a direct appeal to the court of appeals, but instead provides that a party may appeal the decision to a county court or county court at law in the county in which municipal court is located.

Reappointment of Municipal Judge: Bellamy v. City of Brownsville, No. 13-22-00087-CV, 2023 WL 413583 (Tex. App.—Corpus Christi–Edinburg Jan. 26, 2023.) (mem. op.). Bellamy sued the City of Brownsville for a temporary injunction requiring the city to reappoint him to his office as municipal judge after the city declined to reappoint him after the expiration of his term arguing that because more than ninety days had elapsed since the expiration of his term, he was reappointed as a matter of law. The trial court denied the temporary injunction and Bellamy appealed.

The appellate court affirmed, holding that Bellamy was not entitled to a temporary injunction because he had failed to show an irreparable injury because his claim amounted to a wrongful termination claim, for which damages would be available. 

Tort Claims Act: The City of Edinburg v. Maribel Reyna, No. 13-22-00420-CV, 2023 WL 1831125 (Tex. App.—Corpus Christi–Edinburg Feb. 9, 2023.) (mem. op.). Reyna sued the City of Edinburg for injuries she received after she tripped and fell on a city-owned sidewalk, claiming the city was negligent in maintaining the sidewalk. The trial court denied the city’s plea to the jurisdiction claiming governmental immunity and the city appealed.

The appellate court reversed the trial court’s denial of the city’s plea to the jurisdiction and dismissed the claim, holding that the TTCA did not waive the city’s immunity for the suit because: (1) Reyna had knowledge of the sidewalks defects; and (2) Reyna did not present evidence that the city had knowledge of the sidewalk’s defects.

Tort Claims Act: Pardo v. Iglesias, No. 14-22-00338-CV, 2023 WL 363024 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023). Rafael Iglesias sued two police officers for damages stemming from an altercation at a night club. At the time of the incident, the police officers were off duty, but they were still in uniform while working security for the night club. The officers moved to dismiss the claims against them pursuant to the Texas Tort Claims Act (TTCA), but the trial court denied their motion. They appealed. Under the election of remedies section of the TTCA, if a suit for damages is: (1) brought against an employee of a governmental entity, (2) based on conduct within the employee’s general scope of employment, and (3) the case could have been brought against the employer, then: (1) the suit is considered to be against the employee in their official capacity only, and (2) the employee must be dismissed from the suit. Police officers have a duty to stop crime whenever it occurs; therefore, intervening in a fight at a night club would fall within a police officer’s general scope of employment, even if the officer is off duty. Because the officers were employees of a city and were stopping a criminal act, they were immune from personal liability and should have been dismissed from the case. The appellate court reversed the trial court’s order and dismissed the cases against the two officers.

Note:  Included opinions are from January 11, 2023 through February 10, 2023.

KP-425 (Eight Liners): Penal Code section 47.06 criminalizes possession of a gambling device. Subsection 47.01(4)’s definition of gambling device includes specified contrivances that afford a player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance. It is unlikely a court would conclude that subsection 47.01(4) excludes an amusement machine where the amount awarded from play is partially determined by chance.

Because it involves the resolution of fact questions, we do not opine on whether a particular amusement machine constitutes a gambling device.

KP-428 (Conflicts): Chapter 176 of the Local Government Code requires disclosure when a local government entity contracts or considers contracting with a vendor with whom a local government officer of the entity has a specified employment, business, or family relationship. Chapter 176 likely applies when a law firm contracts with a city and the law firm employs the son-in-law of the city manager. The chapter does not prohibit a contract in such circumstances, but it requires the officer to file a conflict-of-interest statement and the vendor to file a conflict-of-interest questionnaire.

Whether a lawyer or law firm’s employment in particular circumstances would constitute a conflict-of-interest under the Texas Disciplinary Rules of Professional Conduct involves fact-intensive questions that cannot be resolved in an Attorney General opinion.

SAVE THE DATE – 2023 TCAA Summer Conference  

The 2023 TCAA Summer Conference at the Westin in San Antonio will take place June 14-16, 2023.  

88^th Legislative Session 

The 2023 legislative session began on January 10. Stay informed by checking  TML’s Legislative Update weekly for summaries of city-related bills and associated articles. 

TMCEC’s 2023 Prosecutor Seminar 

The Texas Municipal Courts Education Center’s 2023 Prosecutor Seminar will take place on February 22-24, 2023 at the Holiday Inn Riverwalk in San Antonio. For more information, see this brochure and register here. 

TCAA Online Membership Directory 

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here. 

IMLA Membership 

Membership with IMLA doesn’t just mean discounts to their events. It’s much more than that. Click here to view a quick video about IMLA membership.  

Continuing Legal Education 

2022 Riley Fletcher Seminar, 2022 Summer Conference, and 2022 Fall Conference 

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

Note: Included cases are from December 11, 2022 through January 10, 2023. 

Americans with Disabilities Act: Wilson v. City of Southlake, No. 21-10771, 2022 WL 17604575 (5th Cir. Dec. 13, 2022) (per curiam). The plaintiffs sued the city under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) over a verbal altercation between an eight-year-old child in school and the school resource officer, after which the city police department terminated the officer. The trial court granted summary judgment in favor of the city on the ADA and RA claims and the Fifth Circuit affirmed.  

The Fifth Circuit rejected the plaintiffs’ argument that the officer discriminated against the child who had autism, anxiety, and ADHD on the theories of: (1) disparate treatment; and (2) failure to provide reasonable accommodations. First, there was no evidence that the office would have interacted differently with a child who did not have a disability if the child was behaving the way the plaintiffs’ child did. Second, the officer had never met the child before the child never calmed down during the interaction, and the parents had to remove the child from school, so the failure to provide a reasonable accommodation theory failed. 

 
Takings: Dahl v. Vill. of Surfside Beach, Texas, No. 22-40075, 2022 WL 17729411 (5th Cir. Dec. 16, 2022) (per curiam). Dahl sued the city for inverse condemnation and declaratory judgment. Dahl filed  a building permit with the city for a property and did not include a wetlands-delineation report stating if the property sits on any federally protected wetlands. The city notified Dahl that his application was deficient. He did not receive a permit and never appealed the decision. The city argued in its motion to dismiss the lawsuit was not ripe because Dahl never received a determination from a building official nor did he pursue his appeals. The district court granted the motion and Dahl appealed. 

The Fifth Circuit affirmed the dismissal on the grounds the claims were not ripe because the city did not render a final decision and Dahl ignored relevant forms of relief. 

Civil Rights: Vardeman v. City of Houston, 55 F.4th 1045 (5th Cir. 2022). Plaintiff brought a § 1983 action against a police officer and city, alleging that his Fourth Amendment rights were violated when the officer punched him in the face, knocking him to the ground, and stood over him for a time after plaintiff had failed to move his vehicle from an airport’s passenger-pickup area. The district court dismissed the claim on the pleadings.  

The Fifth Circuit affirmed judgment for the city and reversed judgment for the officer. The Court found that the facts as alleged created a dispute about whether the officer used excessive force in making a seizure. Regarding the city, the Court found that the allegations failed to allege a pattern or practice of assault.  

Civil Rights: Petersen v. Johnson, 57 F.4th 225 (5th Cir. 2023). The parents of an arrestee (Petersen) who later committed suicide filed § 1983 action against the county, the city, an undercover police detective, and the jail’s mental health and medical services providers asserting claims for false arrest, malicious prosecution, municipal liability, and state law negligence. The district court dismissed the complaint and the Fifth Circuit affirmed. 

The Fifth Circuit found that the undercover police detective did not violate Petersen’s constitutional rights against false arrest because the detective had probable cause to arrest Petersen under Texas law once he solicited a minor on the Internet. Likewise, the detective charged Petersen with the correct crime, so there was no malicious prosecution. Because there were no constitutional violations, the city was not liable. Finally, the claims against the medical personnel failed because when Petersen committed suicide, he was released from custody. The medical personnel had a fleeting interaction with Petersen and the interval of time that passed between that interaction and the suicide could not support a negligence claim. 

Note: Included cases are from December 11, 2022 through January 10, 2023. 

Tort Claims Act: City of Houston v. McGriff, No. 01-21-00487-CV, 2022 WL 17684046 (Tex. App.—Houston [1st Dist.] Dec. 15, 2022.) (mem. op.). McGriff sued the City of Houston for negligence after she was injured when a freightliner driven by a city employee drifted into her lane and collided with the bus she was driving. The city filed a plea to the jurisdiction and a motion for summary judgment. The trial court denied both and the city appealed. 

The appellate court affirmed, holding that because the emergency response exception to the Texas Tort Claims Act’s waiver of immunity does not apply if the emergency may have been caused by the negligence of the person under inquiry, the city could not conclusively establish the sudden-emergency defense, so summary judgment was not appropriate.  

TCEQ Permitting: Tex. Comm’n on Envtl. Quality v. Save Our Springs All., Inc., No. 08-20-00239-CV, 2022 WL 17659907 (Tex. App.—El Paso Dec. 13, 2022). This is an important case for cities facing increased scrutiny regarding TCEQ wastewater discharge permit applications. It centers around a years-long challenge by the Save Our Springs Alliance (SOS) to the issuance of a wastewater discharge permit to allow the City of Dripping Springs to discharge treated effluent into two waterways. After TCEQ approved a discharge permit, SOS sued, alleging the permit approval was improper as a matter of law and arguing that the administrative record was not sufficient to support approval of the permit. The district court agreed. TCEQ and the city appealed the district court’s ruling, arguing that (1) the TCEQ applied the appropriate standards of analysis, and (2) the administrative record supported issuance of the permit. A court may reverse an agency order if the substantial rights of a party are prejudiced by administrative findings or decisions that are: (1) in violation of a constitutional or statutory provision; (2) in excess of the agency’s statutory authority; (3) made through unlawful procedure; (4) affected by other error of law; (5) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. The appellate court in this case took pains to review the administrative record in great detail with reference to the applicable legal standards. This is a lengthy opinion, and ultimately the appellate court found that the TCEQ had reviewed the permit application in reference to the appropriate standards and reversed the trial court’s judgment denying the permit. This is an important ruling for cities, because SOS was essentially arguing for a different standard for permit review than exists in the law. If the lower court’s ruling had been upheld, the applicable standards for discharge permit approval would have been fundamentally altered.  

Declaratory Judgment: City of El Paso v. Pickett, No. 08-21-00147-CV, 2022 WL 17974630 (Tex. App.—El Paso Dec. 28, 2022). Joseph Pickett sued the City of El Paso after the city increased the “environmental franchise fee” (EFF) charged to customers of El Paso Water. The ordinance creating the fee stated that it was charged in order to reimburse the city for the wear and tear on city streets caused by solid waste utility vehicles. In the city’s 2020 budget, EFF funds were allocated not only for street repair but for fire department vehicles and police department major capital equipment. Pickett petitioned the court for a declaratory judgment construing the city’s ordinances and whether the city could obtain funds for street maintenance and public safety equipment through a fee for solid waste disposal services. The city filed a plea to the jurisdiction claiming Pickett (1) lacked standing and (2) failed to plead a waiver of government immunity. The trial court denied the city’s plea, and the city appealed. To have standing, an individual must be able to show that (1) they are a taxpayer, and (2) public funds have been spent on an allegedly illegal activity. Being a property owner in the city, Pickett was a taxpayer, and because his allegations were related the validity of the city expenditure rather than validity of the EFF itself, the court found he satisfied the standing requirements. With regard to the city’s claim of immunity, the Uniform Declaratory Judgment Act contains a clear waiver of immunity for an action involving a municipal ordinance, so the appellate court overruled the city’s second issue as well. 

Takings; Immunity: City of El Paso Tex. v. Torres, No. 08-22-00058-CV, 2022 WL 17986197 (Tex. App.—El Paso Dec. 29, 2022). Maria Torres owned property on La Senda Drive in El Paso, Texas. The City of El Paso resurfaced an adjacent roadway, and following the road work, Ms. Torres’ property flooded during a rainstorm. Water and mud entered her home, which she slipped on, fracturing her arm. She sued the city alleging that her property had been taken, damaged, or destroyed for public use as well as for personal injuries. The city filed a plea to the jurisdiction, asserting that Torres failed to state a viable taking claim and immunity from personal injury liability. The trial court denied the plea in its entirety. To state a viable takings claim, Torres needed to allege (1) an intentional act by the city acting under its lawful authority, (2) which resulted in the taking or damaging of property, (3) for public use. Analyzing the pleadings, the appellate court found that the city’s road work was intended to change the flow of water on the roadways, which allegedly increased the intensity of water flowing to the Torres’ home and resulted in significant damage to the property. Therefore, the appellate court found a property-pled takings claim and affirmed the trial court’s dismissal of the city’s plea on this ground. With regard to the city’s claim of governmental immunity from the personal injury claims, the appellate court reversed the trial court’s order. Torres claimed that the city’s alleged negligent act which caused her personal injuries was the city’s negligent design of the roadway. The Texas Tort Claims Act does not provide a waiver of governmental immunity for discretionary design decisions. Because immunity is not waived for these claims, the appellate court reversed the trial court and dismissed the claims for personal injury. 

Immunity: Jarnail Sihota and GTHCC, Inc. v. City of Midland, No. 11-21-00171-CV, 2022 WL 17996996 (Tex. App.—Eastland Dec. 30, 2022) (mem. op.). After the city of Midland issued an order declaring Jarnail Sihota’s building to be substandard and requiring abatement action, Sihota obtained a building permit to begin making repairs. Several months later, the building repairs had not been completed so the city notified Sihota of its intent to demolish the building in accordance with the abatement order. As a result, Sihota sought emergency relief pursuant to the Texas Uniform Declaratory Judgment Act, and the city filed a plea to the jurisdiction claiming Sihota failed to timely appeal the abatement order as required by Local Government Code Section 214.0014 and claiming governmental immunity. Following a hearing, the trial court granted the city’s plea, and Sihota appealed, arguing the court should have invoked its equitable jurisdiction and estopped the city from the demolition because Sihota believed he had more than thirty days to complete the repairs and had invested $1.8 million on the project. In affirming the trial court’s order, the appellate court concluded that because Sihota failed to timely appeal the abatement order, the trial court was precluded from reaching a determination on the estoppel argument because it lacked subject matter jurisdiction.  

Right-of-Way Obstructions: Torres v. Cameron Cnty., No. 13-20-00568-CV, 2022 WL 17844210 (Tex. App.—Corpus Christi–Edinburg Dec. 22, 2022.) (mem. op.). Torres built a fence within a couple of feet of a Harris County road, and the county sued for a declaration that the fence obstructed the road. The trial court declared that the road was properly in the area that had been expressly dedicated to the county and ordered Torres to remove all obstructions with the county’s 60-foot right-of-way. Torres appealed, claiming judgment not in conformity with the pleadings and legal and factual insufficiency. 

The appellate court affirmed, holding that: (1) the written judgment controls over prior oral statements by the judge and the written judgment was in conformity; and (2) the county did present legally and factually significant evidence that the area had been expressly dedicated to the county. 

Whistleblower Act: City of Pharr v. Bautista, No. 13-22-00278-CV, 2022 WL 17844214 (Tex. App.—Corpus Christi–Edinburg Dec. 22, 2022.) (mem. op.). Bautista sued the City of Pharr under the Whistleblower Act, claiming his termination was in retaliation for a report he made to the Texas Commission on Environmental Quality. The city filed a plea to the jurisdiction, arguing that Bautista had not filed his suit within the 90-day statutory limitations period after exhausting his administrative remedies with the city. The trial court denied the plea and the city appealed. 

The appellate court affirmed, holding that because a letter from the city stating that Bautista’s appeal of his termination did not conclusively deny the appeal but merely stated the appeal’s deficiencies, a fact issue remained as to whether that letter constituted a final decision on appeal.