Category Archives: Mandamus

Texas Supreme Court holds a lack of immunity for coronavirus is not a “disability” for purposes of mail-in election ballots

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In re State of Texas, 20-0394 (Tex. May 27, 2020)

This is a mail-in ballot case. The great folks at the Texas Municipal League already summarized this case, and I try not to duplicate any summaries they beat me to. Their summary is found here and was issued May 28, 2020.

However, since not everyone may have seen the summary and it affects multiple entities, I’ve included this condensed version.

Essentially, the Texas Attorney General filed the lawsuit directly with the Supreme Court, seeking to prevent clerks and other election officials from allowing mail-in ballots for those fearful of contracting the virus responsible for COVID-19. Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances, one being the voter is disabled by statutory definition. The Court emphasized that it takes no side in what is the best policy, as that is for the Legislature. Its job is to interpret the language of the Election Code. Based on the language provided, the Court held  “…a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face.”  As a result, it declined to issue a mandamus against any officials, noting the Court was confident they would comply with the law in good faith, now that the Court has clarified the statutory language.

If you would like to read this opinion, click here. Chief Justice Hecht delivered the opinion of the court. Justices Guzman, Boyd and Bland delivered separate concurring opinions.

PIA case remanded because mayor and city secretary did not do a search of personal emails or phones for public business

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James E. Horton v. Ron Welch, Individually and Ron Welch, as Mayor of the City of Caney City, Texas, 12-19-00381-CV, (Tex. App – Tyler, April 8, 2020)

This is a Public Information Act (“PIA”) case where the Tyler Court of Appeals overruled an order granting the City and mayor’s summary judgment. [Comment: this case was filed prior to the recent PIA statutory changes creating temporary custodians.]

Horton sent two separate requests for numerous records to the City and Mayor Welch (seeking txts, emails, etc.). After Horton paid the required fees, the City, through Welch, gave him what it claims is all the requested records. Horton filed a suit asserting that Welch (as custodian) did not fully comply with his request and asking the trial court to issue a writ of mandamus. Welch filed a no-evidence motion for summary judgment arguing that he provided Horton with all requested records and documents and Horton has no evidence to the contrary. Welch also filed a traditional motion for summary judgment.  The trial court granted Welch’s motions and Horton appealed.

The PIA provides a statutory remedy of mandamus to a requestor when the governmental body refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure. The traditional MSJ was accompanied by an affidavit the city secretary performed a “painstaking investigation” and review of the City’s files and produced all responsive records. The City asserts it is not in possession of any additional records. However, the testimony established the city secretary and mayor did not examine personal accounts upon which council members could have utilized. Under the PIA “is not dependent on whether the requested records are in the possession of an individual or whether a governmental body has a particular policy or procedure that establishes a governmental body’s access to the information.” The PIA provides no guidance regarding the efforts a governmental body must take to locate, secure, or make available the public information requested. However, since the testimony established the mayor and city secretary did not look in private accounts which could have contained such information, a fact issue exists regarding whether or not all responsive information was provided.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Reversed and Remanded. Memorandum Opinion by Justice Hoyle. Docket page with attorney information can be found here.

 

Texas Supreme Court holds no-evidence MSJ proper to challenge jurisdiction; TOMA waiver of immunity does not include declaratory judgment claims

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Town of Shady Shores v Swanson, 18-0413 (Tex. Dec. 13, 2019)

This is an employment case, but the focus on the opinion is a procedural one.  Importantly, the Texas Supreme Court held 1) a no-evidence motion for summary judgment was proper to raise a jurisdictional challenge and 2) the Texas Open Meetings Act (TOMA) did not waive immunity for declaratory relief, only mandamus and injunctive relief.

Swanson was the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction which was granted as to the Sabine Pilot and Whistleblower claims. The  Town later filed traditional and no-evidence summary judgment motions (on immunity grounds) as to the Texas Open Meetings Act declaratory judgment claims, which the trial court denied.  The Town took an interlocutory appeal, but Swanson kept filing motions. The trial court granted Swanson leave to file a motion for a permissive interlocutory appeal as Swanson asserted she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the Town’s notice of appeal for the summary judgments. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal the Town filed a separate mandamus action (which was consolidated for purposes of appeal). The court of appeals declined to issue the mandamus noting the trial court did not actually sign any orders and noted Swanson did not timely file an appeal and was not granted a permissive appeal. Court of appeals summary found here.

The court of appeals held allowing a jurisdictional challenge on immunity grounds via a no-evidence motion would improperly shift a plaintiff’s initial burden by requiring a plaintiff to “marshal evidence showing jurisdiction” before the governmental entity has produced evidence negating it.  It also held the entity must negate the existence of jurisdictional facts. After recognizing a split in the appellate courts, the Texas Supreme Court rejected the reasoning noting in both traditional and no-evidence motions, the court views the evidence in the light most favorable to the nonmovant.  Because the plaintiff must establish jurisdiction, the court could “see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.”  Thus, when a challenge to jurisdiction that implicates the merits is properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff will be required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact.  Such a challenge is proper using a no-evidence summary judgment motion.  Next, the Court held  the UDJA does not contain a general waiver of immunity, providing only a limited waiver for challenges to the validity of an ordinance or statute.  UDJA claims requesting other types of declaratory relief are barred absent a legislative waiver of immunity with respect to the underlying action. Under  TOMA, immunity is waived only “to the express relief provided” therein—injunctive and mandamus relief—and the scope does not extend to the declaratory relief sought. Thus, TOMA’s clear and unambiguous waiver of immunity does not extend to suits for declaratory relief against the entity. However, Swanson did seek mandamus and injunctive relief as well, which were not addressed by the court of appeals, even though argued by the Town. As a result, such claims are remanded to the court of appeals to address.

If you would like to read this opinion click here. Justice Lehrmann delivered the opinion of the Court. The docket page with attorney information is found here.

El Paso Court of Appeals reversed mandamus against JP holding rules applicable to justice/municipal courts allow “electronic” judgments

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In re Lujan, 08-15-00286-CV, 2019 WL 1922765, (Tex. App. – El Paso, April 30, 2019).

This is a mandamus case involving and order the Justice of the Peace for Precinct 6 in El Paso to vacate an order falling outside of his plenary power.  This case involves principles of JP and non-record courts and will be of interest to those attorneys who practice in such courts.

The underlying action was a citation for “Possession of Drug Paraphernalia,” a Class C misdemeanor punishable only by a fine.  Villanueva entered a plea of no contest and payment. The court submitted the information into its case management system; but it is important to note  no written judgment was created or signed by Judge Lujan. Four years later, Villanueva requested a withdrawal of his previous plea and a trial. When Judge Lujan refused, Villanueva filed for a writ of mandamus to a county court in El Paso.  The record included a paper copy of the court’s case management system docket entries, Villanueva’s identifying information, his entered plea, the screen shot of the system’s judgment (adjudged “guilty”), the paid fine amount, and receipt of said payment after acknowledgement by Villanueva that it was a “record.” Ultimately, the county court granted  mandamus petition against Judge Lujan, stating that Lujan never entered a written judgment as required by the applicable procedural rules and failed to set the case for trial. At this point, Lujan filed a motion for a new trial and a notice of intent to appeal.

The pivotal focus in this case is the relationship between justice/municipal courts and the Code of Criminal Procedure and Civil Procedure. Justice and municipal courts are controlled by Chapter 45 of the Code of Criminal Procedure. The El Paso Court of Appeals held that justice and municipal courts are not governed by provisions outside of Chapter 45 if they are expressly included within Chapter 45 provisions. Further, during the Court of Appeals’ analysis refused to hold justice and municipal courts to standards applicable to “indictments and informations,” since justice (and municipal) courts rely on complaints as their charging instruments.  The interconnectivity is often misunderstood. The El Paso Court of Appeals noted 1) along with Chapter 45, chapters the Texas Government Code also apply including Chapter 27 to justice courts, Chapter 29 to municipal courts not of record, and municipal Chapter 30 to municipal courts of record and 2) in the absence of a specific provision, the remainder of the Code of Criminal Procedure most likely applies to justice and municipal courts. The appellate court found provisions within Chapter 45 considered electronically stored records to have the same effect as documents otherwise required to be written. Specifically, the Chapter provided that electronically recorded judgments have the “same force and effect as a written signed judgment.” As a result, the order of mandamus was reversed.

If you would like to read the opinion in its entirety, please click here.  Panel consists of Chief Justice McClure, Justice Rodriguez and Justice Hughes.  Opinion by Justice Rodriguez.

Texas Supreme Court holds attorney-client privilege applies even when client acts as its own expert

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In Re: City of Dickinson, 17-0020 (Tex. February 15, 2019)

This is a mandamus action of primary interest to litigators where the Texas Supreme Court held the attorney/client privilege protects expert testimony when the client is also the expert.

The City of Dickinson purchased a commercial windstorm policy from Texas Windstorm Insurance Association. In the underlying litigation, the City alleges that Texas Windstorm has not paid all it owes under the policy and sued. In the motion for summary judgment Texas Windstorm included the affidavit of its corporate representative and senior claims examiner, Paul Strickland. Strickland’s affidavit provided both factual and expert opinion testimony on Texas Windstorm’s behalf. Strickland’s affidavit had been revised in a series of emails between Strickland and Texas Windstorm’s counsel and the City sought the drafts in discovery. Texas Windstorm asserted the communications were privileged while the City asserted, as a testifying expert, the communications were not privileged. The trial court ordered Windstorm to produce the communications. The court of appeals conditionally granted a writ of mandamus. The Texas Supreme Court heard the mandamus filed by the City.

Texas Windstorm responds that the expert-disclosure rules do not override the attorney–client privilege and do not require a party to choose between defending itself and maintaining its privileges. It asserted the attorney–client privilege is substantively distinct from the work-product doctrine.  There was no dispute the communications at issue were encompassed within the attorney/client privilege.  The Court declined to create any new privileges in the opinion and confined its analysis to the rules of discovery already in place. Because the discovery rules are part of a cohesive whole, the Court considered them in context rather than as isolated provisions.  While Texas Rule of Civil Procedure 192.3 states a party may discover expert information, it does not expressly permit discovery when the information is protected by the attorney/client privilege. In fact, Rule 192.3(a) expressly contains the phrase “absent some specific provision otherwise” which the Court interpreted to include the attorney/client privilege.  Further, Rule 194.2 permits a party to seek a disclosure on expert information, but such is permissive, not mandatory and is subject to privileged communications. Additionally, the official comments to Rule 194 explain that a responding party may assert any privilege to a Rule 194.2 request except work product. The City’s supporting cases were largely based in the work-product privilege, not the attorney/client privilege. As a result, they are inapplicable. The Court reemphasized some of its more recent opinions holding the attorney/client privilege is a “quintessentially imperative” to our legal system. A lawyer’s candid advice and counseling is no less important when a client also testifies as an expert. As a result, it upheld the mandamus and allowed Texas Windstorm to withhold the communications.

If you would like to read this opinion click here. Justice Devine delivered the opinion of the Court. The docket page with attorney information is found here.

Austin Court of Appeals holds dog owner entitled to jury trial in appeal from municipal court of record

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In re: Linda Pool, 03-18-00299-CV (Tex. App. – Austin, January 23, 2019)

This is a mandamus case where the Austin Court of Appeals conditionally granted the writ requiring a county court-at-law to hold a jury trial on a dangerous dog determination appeal.

Pool owns a dog named Pepper, who allegedly attacked a jogger named Hoffman. An independent hearing examiner took sworn testimony and determined Pepper was a “dangerous dog” under §822.041(2) of the Texas Health and Safety Code. Pool appealed the decision to the Austin Municipal Court. The municipal judge, without a jury, held a hearing and confirmed Pepper was a dangerous dog. Pool appealed to the county court-at-law and requested a jury trial de novo. The state argued that since the Austin Municipal Court is a court of record, any appeal is based on errors in the record and no de novo appeal is possible. The trial court held Pool was not entitled to a de novo review. Pool brought this mandamus action to compel a jury trial.

The court held this was a case of statutory interpretation. Under Chapter 30 of the Texas Government Code, appeals from a court of record are only appeals on the record. Tex. Gov’t Code §30.00014(b).  However, §822.0424 states that a party “to an appeal under Section 822.0421(d)… may appeal the decision… and is entitled to a jury trial on request.”  The court noted that subsection (a) of §30.00014 states an appeal can be had from a judgment or conviction, but subsection (b) (which states an appeal is on the record only) simply references the word “conviction” and not “judgment.”  The court essentially held that a conviction equals criminal matters and a “judgment” equals civil matters for purposes of appeal. Since “judgment” was not mentioned in subsection (b) regarding the form of appeal, the form of appeal is not always on the record. Since §822.0424 states the appellate can make a jury trial request, the county court-at-law was required to grant the request. The court further held, in a footnote, that if the two statutes could not be harmonized, §822.0424 would still win out as the most recently passed provision. It conditionally granted the writ.

If you would like to read this opinion, click here. Panel consists of Chief Justice Rose, Justice Goodwin and Justice Baker. Memorandum Opinion by Justice Goodwin. The attorney listed for Pool is Ms. Anna Eby.  The attorneys listed for the Travis County Attorney’s Office, real party in interest are David A. Escamilla, Tim Labadie and  Annalynn C. Cox.

December 2018 Condensed Summaries

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The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

Mandamus action: Pre-suit discovery precluded as petitioner did not support the petition with evidence and trial court failed to issue mandatory findings

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In Re: City of Tatum, Texas, 12-18-00285-CV (Tex. App. – Tyler, December 21, 2018)

This is a writ of mandamus original proceeding where the Tyler Court of Appeals conditionally granted the City’s relief and precluded a potential party from taking pre-suit depositions pursuant to Rule 202.

Peterson filed a petition for a pre-suit deposition of the police chief pursuant to Texas Rule of Civil Procedure 202. The grounds for the deposition are that Peterson asserts a Tatum police officer sexually assaulted her when the officer arrived in response to a call for assistance at the home. She alleged that the City knew the officer “exhibited indicators” of this type of behavior; negligently hired, trained, controlled, supervised, and monitored the officer; did not have a policy to prevent such behavior and she anticipated being a party to a lawsuit involving the City. The City objected.  The trial court signed an order allowing the deposition and the City filed this original mandamus proceeding.

Pre-suit discovery is not intended for routine use; it creates practical and due process problems because discovery demands are made of individuals or entities before they are told of the issues. Rule 202.4 states a trial court must order a pre-suit deposition to be taken only if it finds: (1) allowing the deposition may prevent a failure or delay of justice in an anticipated suit (to be used if the purpose is to collect evidence for a lawsuit )or (2) the likely benefit to investigate a potential claim outweighs the burden or expense of the procedure (to be used in order to investigate if a claim even exists). The verified statements in a Rule 202 petition are not considered competent evidence. Peterson presented no evidence to support possible claims to investigate or collect. That a party (i.e. City) may be in possession of evidence pertinent to the subject matter of the anticipated action or to the petitioner’s potential claims does not alleviate the petitioner of her burden of providing evidence to support a Rule 202 request for pre-suit depositions. Further, the order does not contain the findings required to make it a proper order. The Texas Supreme Court has made clear that Rule 202.4 findings cannot be implied from the record and the findings are mandatory. Because the requirements of Rule 202.4 are mandatory, the City’s failure to object in the trial court does not result in waiver. The court conditionally granted the writ and stated an unconditional writ will issue only if the trial court’s order is not corrected.

If you would like to read this opinion click here. Memorandum opinion by Justice Neeley. The attorney for the City is listed as Darren K. Coleman.  The attorney for Peterson is listed as Ron Adkison.

Amarillo Court of Appeals holds no jurisdiction exists under PIA unless university “refuses” to supply information

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Texas Tech University v. Dolcefino Communications, LLC dba Dolcefino Consulting, 07-18-00225-CV (Tex. App. – Amarillo, December 4, 2018).

This is a Public Information Act (“PIA”) case where the Amarillo Court of Appeals reversed the denial of a plea to the jurisdiction and held Texas Tech University properly complied with the PIA.

Dolcefino Communications, LLC (“Dolcefino”) requested various records from Texas Tech under the PIA. Texas Tech produced some but did not produce all the records requested. Dolcefino filed a petition for mandamus relief under Tex. Gov’t Code §552.321. Texas Tech filed a plea to the jurisdiction, which was denied. Texas Tech appealed.

The Legislature has prescribed that all statutory prerequisites to suit are jurisdictional in suits against governmental entities.  While the PIA waives immunity to a limited extent, the waiver is not all encompassing. Under the PIA, a requestor may file suit only upon showing that the governmental body “refuses to supply public information” or “refuses to request an attorney general’s decision.”  Such are statutory prerequisites to suit. The lion’s share of Dolcefino’s requests at issue were deemed “withdrawn as a matter of law” by Texas Tech. Dolcefino do not respond in writing to the itemized statement of costs or provide a bond within the time period. Dolcefino did not (1) accept the estimated charges, (2) modify its requests, or (3) send a complaint to the attorney general.  Dolcefino and Texas Tech did engage in what Dolcefino characterizes as a “back-and-forth” regarding the charges due.  However, an ongoing parleying over price does not provide a basis for overriding the statutory scheme for responding to an estimate of charges. The request was properly considered withdrawn. The court also dismissed Dolcefino’s argument Texas Tech waived the withdrawal language since estoppel does not run against a governmental entity.  Regarding the remaining portions of the request, Texas Tech asserts no responsive documents exist. However, a movant in a plea to the jurisdiction must assert and support with evidence the trial court’s lack of subject matter jurisdiction.  The court analyzed the emails back and forth with Dolcefino where Texas Tech asserted it did not have certain specific documents. Dolcefino asserted the statements were conclusory and not competent evidence. The court held “[a]s sparse as this additional data may be, it nevertheless insulates Texas Tech’s reply from a potential attack as conclusory.” Texas Tech produced some evidence that it was not “refusing” to provide public information to Dolcefino.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panelconsists of Chief Justice Quinn, Justice Campbell, Justice Parker. Opinion byJustice Parker. The attorneys listed for Texas Tech are Eric A. Hudson and EnriqueM. Varela.  The attorneys listed forDolcefino are Michael K. Hurst, Julie Pettit, David B. Urteago, David Coale.

Order for City to release documents under PIA and certify compliance was not a “temporary injunction” entitling City to interlocutory appeal says Houston’s 1st District Court of Appeals

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City of Houston v Dolcefino  Communications, et al., 01-17-00979-CV (Tex. App. – Houston [1st Dist.], October 30, 2018

This is an interlocutory appeal in a Public Information Act (“PIA”) case where the First District Court of Appeals determined it lacked interlocutory jurisdiction.

EcoHub was negotiating with the City to be a recycler for the City. When the City declined to utilize them, EcoHub hired Dolcefino, an investigative journalist, to research the City’s recycling contracts. Dolcefino made multiple requests for public records from the City. After not receiving documents Dolcefino believed he was entitled to receive, he brought a petition for writ of mandamus. Dolcefino filed a motion to compel the production of documents responsive to his requests. The City responded that, while it took longer than expected, it already produced most of the documents to Dolcefino. The trial court issued an order 1) ordering production of all responsive documents, 2) that the City certify, in writing, it has provided all responsive documents, 3) produce all non-produced records (noted as non-disclosable under an AG opinion) to the court for in camera inspection, and certify it has complied with all requirements. The City, while providing all in camera documents and having produced all others, still argued the court could not grant the motion to compel as the PIA only contemplates disclosure under a protective order and after certain procedures. Certification is also not required under PIA. The City filed an interlocutory appeal asserting it was appealing the granting of a temporary injunction order.

The court first noted that Tex. Civ. Prac. &  Rem. Code § 51.014(a)(4) gives it interlocutory jurisdiction over an injunction order. However, the order to compel is not truly an injunction. The purpose of a temporary injunction is to preserve the status quo. At one of the hearings the court asked the City whether all documents which were disclosable had been turned over and the City’s attorneys gave two conflicting answers. So, the court ordered the City to figure out the answer and certify it to the court. The trial court’s order does not require the City to perform any action that rises to the level of an injunction. Instead, the order merely attempts to clarify whether the City has complied with the PIA requests, other than the documents that have been submitted to the trial court for in camera review. With no injunction order present, the court does not have interlocutory jurisdiction to hear the appeal.

If you would like to read this opinion click here. Panel consist of Chief Justice Radack, Justice Brown and Justice Caughey. Memorandum Opinion Per Curiam.  The attorneys listed for Dolcefino are Stewart E. Hoffer and Fran Robin Kantor Aden.  The attorneys listed for the  City are  Fernando De Leon, Patricia L. Casey and Suzanne R. Chauvin.

City properly brought enforcement of junked vehicle ordinance in district court, but city ordinance did not properly adopt alternative administrative procedure

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In re Philip T. Pixler, 02-18-00181-CV (Tex. App. – Fort Worth, July 26, 2018).

This is a mandamus suit where the Fort Worth Court of Appeals held the district court had jurisdiction over the City of Newark’s enforcement of its junk vehicle ordinance, but that the City ordinance did not properly create an alternative mechanism to allow for administrative penalties.

Pixler owns an auto-tech business and would sometimes store vehicles in parking spaces and on the neighboring property.  Pixler was given eight complaints which were submitted to an administrative board under the City’s ordinances. The board determined the vehicles were junk vehicles and assessed $8,000 in administrative penalties. Pixler did not challenge the board decision directly. The City then filed a petition in district court seeking (1) to enjoin Pixler from further violating its ordinances, (2) to collect the $8,000 in administrative penalties, and (3) to impose separate civil penalties against Pixler for continuing to violate its ordinances. The City won a partial summary judgment motion and awarded penalties totaling $80,000.00, but since the City’s Texas Uniform Fraudulent Transfers Act claim is still pending, no final judgment has been entered.  Pixler filed this mandamus proceeding challenging the district court’s subject matter jurisdiction over the matter.

The court divided the holding into roughly three parts: district court jurisdiction over junk-vehicle determinations, district court jurisdiction over administrative penalties assessed by the administrative board, and the district court’s jurisdiction over the additional civil penalties. Subchapter B of chapter 54 of the Texas Local Government Code addresses health and safety ordinances and allows a district court to have jurisdiction over enforcement of such ordinances. And §54.016 permits the municipality to obtain injunctive relief against the owner of the premises that is allegedly in violation of the ordinance. Since the City ordinance declares any junked vehicle visible from a public place to be detrimental to the safety and welfare of the public, enforcement is properly in the district court.  And since §54.017 allows civil penalties of no more than $1,000 per day, the district court has jurisdiction over the civil penalties. However, for administrative penalties assessed by the administrative board, the City’s ordinances did not comply with the statutory requirements. The City’s ordinances adopt the procedures established under the Texas Transportation Code chapter 683 for abatement of junked vehicles. But, the procedures adopted address enforcement in municipal court before a judge.  And while Subchapter E of Chapter 683 allows a city to adopt an alternative procedure for junked vehicles and §54.044 of the Local Government Code likewise allows a city to adopt a general alternative procedure, none of the City’s ordinances actually did that. The court acknowledged the City has the statutory authority to adopt an alternative administrative procedure, but to do so, the City must adopt a specific ordinance setting out the process. Simply because the City has a municipal court of record, does not, by default, mean it can utilize an alternative administrative procedure. Because the City utilized that procedure when its ordinances did not adopt one, the administrative board lacked authority to assess the $8,000 administrative penalty.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Walker and Justice Meier. Opinion by Justice Meier.  Attorneys listed for the City real parties in interest are William Andrew Messer  and William W. Krueger, III.  Pixler appeared pro se.

City obtained mandamus to remove TRO preventing display of budget meeting which addressed fiscal impact of pending charter election

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In re Sylvester Turner, Mayor and Dave Martin, Houston City Council Member 14-18-00649-CV (Tex. App. – Houston [14th Dist.], Aug. 23, 2018)

This is an original mandamus where the 14th District Court of Appeals in Houston reversed a trial judge’s order requiring the City to remove the video and transcript of the City’s budget meeting from its website.

A Houston firefighter association (“Association”) collected petitions to place a charter amendment on the ballot which addresses comparable compensation between the firefighters and police. The City Council scheduled a council vote for August 8, 2018, to place the Charter Amendment on the ballot. Pursuant to the Texas Local Government Code, for a charter amendment to appear on the November 2018 general election ballot, the City must publish a fiscal impact in the paper several times. The first publication must occur, at the latest, by mid-October 2018. Relators’ petition states that the City’s Budget and Fiscal Affairs Committee scheduled a public meeting for July 26, 2018, in anticipation of the publication. Various City officials spoke at the meeting and the Association’s attorney was invited to speak. Afterwards a video was posted. Four days later, the Association sought a temporary injunction to prevent release of the video asserting it violated the Election Code. A judge signed a TRO restraining the City from displaying on municipal websites or other municipally funded media platforms any audio, video, or transcribed versions of the July 26 meeting.

The Association alleges the City violated §255.003 of the Election Code, which prohibits an officer or employee of a political subdivision from knowingly spending public funds for political advertising. “Political Advertising” includes a communication supporting or opposing a measure that appears on an Internet website. The City’s Budget and Fiscal Affairs Committee scheduled the July 26 public meeting to obtain information regarding the fiscal impact of the proposed charter amendment. The fiscal impact of the charter amendment is relevant to whether voters and Council Members may oppose or support the charter amendment. The 14th Court held it was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting. However, according to Ethics Advisory Opinion No. 456, such public discussion generally does not violate §255.003 of the Election Code. Such section was not intended to inhibit discussion of matters pending before a governmental body. In such a situation, public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the City’s website may be to re-publish statements supporting or opposing the charter amendment.  As a result, the district court judge committed error, and mandamus was issued.

If you would like to read this opinion, click here. Panel consists of Justice Boyce, Justice Wise and Justice Jewell. Memorandum Opinion by Justice Wise. The docket page with attorney information is found here.

City’s denial of plat application citing inconsistencies with “general plan” of city, without more, is insufficient and therefore vested rights are implicated

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The Village of Tiki Island, et al.  v. Premier Tierra Holdings Inc., 14-18-00014-CV (Tex. App. – Houston [14th Dist.], July 10, 2018)

This is an interlocutory appeal in a land-use case were the 14th Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

This case has gone up and down the appellate ladder already.  Prior summary found here. Premier sought to develop property for a mixed-use marina project. Premier submitted a plat application which included up to one hundred residential units and up to 250 dry stack enclosed boat slips. The City had no meaningful land-use regulations or platting or subdivision regulations. Five days later the city enacted a zoning ordinance prohibiting dry boat storage, limiting heights and set-backs, and restricting rental dates and parking. The City then rejected the plat application as being inconsistent with the new ordinance. Premier next sought a rezoning application as a planned unit district, which was denied.  It also sought several plat amendments which were denied. Premier filed a mandamus and sought declaratory relief asking the court to approve the original plat application and successive plat applications based on vested rights under chapter 245 of the Texas Local Government Code. It further brought a takings claim. The City Defendants filed a plea to the jurisdiction which was denied. The City Defendants appealed.

Chapter 245 creates a system by which property developers can rely on a municipality’s regulations in effect at the time the original application for a permit is filed. It freezes” the rules at the time the original application for a permit is filed, and limits the rights of a city to “change the rules in the middle of the game.” Chapter 212 of the Texas Local Government Code deals with plat approval and requires plats to conform to the “general plan” of the city and for extensions of utilities and roadways. The City’s assertion that it relied on a pre-existing “general plan” of the City in denying the original plat application was rejected as the City did not provide, in the record, evidence of such a plan or what its framework would have been. Chapter 212 plans must be adopted after public hearings, which is not evident in the record. A vague reference to a general plan of the city is insufficient for plea purposes and a fact question exists preventing the plea. Further, Chapter 245 expressly authorized a declaratory judgment suit to establish Chapter 245 rights. As to the takings claim, the court held Premier alleged facts to support a takings claim based on the denial of its vested rights in the project.

If you would like to read this legal opinion, click here. Justice Christopher, Justice Donovan and Justice Wise. Opinion by Justice Wise.

City of Houston can be sued by pension board for non-compliance with statutory pension provision and PIA

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City of Houston, et. al.  v. Houston municipal employees pension system, 17-0242, — S.W. 3d — (Tex. June 8, 2018).

City of Houston created several local government corporations to which it transferred some of its employees. Specifically at issue is the adoption of resolutions by the Houston Municipal Employees Pension System’s Board of Trustees (the board) related to those employees, their status, and the City’s obligation to contribute to the pension fund. Under the state statute applicable to Houston’s board, the board has authority to interpret the statute and such interpretation is considered final.  The system interpreted the term “employee” subject to the pension fund to include employees of several local government corporations, especially those where the corporation is controlled by City appointees and funded by the City (such as the pension system employees).  The City refused to fund those individuals and the system sued under an ultra virestheory. It also sued for failure to provide information under the Texas Public Information Act (TPIA).

The Court first held that the statute states the pension system can file suit on behalf of the board, therefore the system has standing. The Court agreed with the City that the system was trying to use an ultra viresclaim to enforce a contract where the end result is the payment of funds.  However, the contract in this case was simply the mechanism used for the City to comply with the requirements of the statute. The City must still follow the statutory requirements for funding the pension plan, so the system can bring an ultra viresclaim to compel compliance with the statute. However, the Court interpreted the pleadings to read the system seeking prospective relief only. Strangely enough, the Court held that the identity of the party is not relevant to the jurisdictional situation in the PIA portion of this case (city v Public Information Officer) as a mandamus is proper against the entity under the PIA.  However, the PIA is not applicable to the other defendants who are not the PIO or the City.   It also held that where the City has a right of access to the information (that of the other corporations), the information is subject to the PIA. Therefore jurisdiction is proper for the system’s claims.

If you would like to read this opinion, click here.Justice Johnson PER CURIAM.

 

Texas Supreme Court holds county commissioner has no authority over plats, so is an improper party to suit by developer

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W.A “Andy” Meyers, individually and in his capacity as Fort Bend County Commissioner v. JDC/Firethorne, LTD., a Texas limited partnership; from Fort Bend County; 14th Court of Appeals District (14-15-00860-cv, 514 sw3d 279, 12-22-16)

In this land development suit, the Texas Supreme Court held because an individual county commissioner lacks legal authority to receive, process, or present a completed plat application the developer failed to shown a substantial likelihood that the injunction will remedy its alleged injury and therefore no jurisdiction exists.

Firethorne had a subdivision within Commissioner Meyer’s precinct. The County’s plat application and approval process for proposed subdivisions is governed by chapter 232 of the Texas Local Government Code and the Fort Bend County Regulations of Subdivisions. The County’s regulations designated its county engineer as the official charged with receiving and processing plat applications. Firethorne contends certain plan applications were placed on “hold” in an effort to “extract a concession” that Firethorne that it must construct four lanes of West Firethorne Road, a road within the Firethorne development. Firethorne did not wish to construct the lanes. Firethorne filed this lawsuit seeking mandamus relief requiring Stolleis to “submit the completed plat application” and that failing to do so is an ultra vires act. Firethorne presented emails showing the engineer was holding the application based on Meyer’s instructions. Firethorne sought an injunction to prevent the County from interfering with Firethorne’s construction. Meyers filed a plea to the jurisdiction which was denied. The trial court found Meyer injected himself into the process and therefore was an essential part and subject to suit. The court of appeals affirmed.

The Texas Supreme Court held Meyer’s arguments are actually challenges to Firethorne’s standing, which Firethorne disguised as an ultra vires claim. Under a standing analysis, the claims asserted must satisfy the redressability requirement of the Texas Constitution. The County’s Regulations of Subdivisions designate the county engineer as the sole county official responsible for receiving all documentation and information that must be submitted with the plat application. A sole commissioner has no authority to receive, process, or present a plat to the collective body. Meyer also has no obligation or duty to do so. A sole commissioner also has no authority to fire the engineer. When a plaintiff seeks an injunction which cannot possibly remedy their situation, the plaintiff has failed to establish standing. Meyer filed the plea, but Firethorne also sought relief from the engineer and the rest of the commissioner’s court which are not part of the appeal. If Firethorne received relief from the other defendants no relief from Meyer is possible. If Firethorne does not receive releif from the other defendants, relief as to Meyer would not remedy its situation. The argument that Meyer has some influence over the engineer is a “political reality” but is not a basis for suit. As a result, as to Meyer, no standing exists to sue him in his official capacity.

If you would like to read this opinion, click here. Justice Green PER CURIAM.