Did You Know: Common Citations For Weeds, Trash, Sanitation

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The governing body can regulate sewers and privies (Tex. Health & Safety Code Ann. § 342.002); trash, rubbish, filth, carrion, or other impure or unwholesome matter (Tex. Health & Safety Code Ann. § 342.003); weeds, brush, and nuisance level vegetation  (Tex. Health & Safety Code Ann. § 342.004).  It can adopt criminal ((Tex. Health & Safety Code Ann. § 342.005) penalties and can bring a civil suit (potentially in municipal court) to enforce such ordinances. Tex. Loc. Gov’t Code §§54.012 & 017.

Trial court had jurisdiction to determine if certain jobs should be classified as civil service, but not to award backpay

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-17-00120-CV (Tex. App. Amarillo — March 21, 2018)

This is a civil service lawsuit where the Amarillo Court of Appeals reversed-in-part the denial of the City’s plea to the jurisdiction.

In Amarillo, firefighter positions have civil service protection and firefighters are contained within the Fire Supersession Department. However, positions in the Amarillo Fire Marshall’s Office (“FMO”) have traditionally been treated outside the protection. Nurek and Stennett were the highest scoring individuals on the promotional exams for positions of an Investigator I (equivalent rank of lieutenant) and Investigator II (equivalent rank of captain) within the FMO. When they were not offered the positions, they sued to declare the positions subject to civil service protection (and therefore eligible for placement via promotional exam). They also sought instatement in the positions and the backpay. The City and the officials sued, filed a plea to the jurisdiction which was denied. They appealed.

Immunity bars a declaratory judgment action seeking a declaration of the government’s liability for money damages.  However, that only addresses the Plaintiffs’ claim for backpay. The court held jurisdiction exists for the trial court to examine the City’s failure to classify firefighter positions within the FMO as civil service positions.  Under §180.006 of the Texas Local Government Code, immunity is waived “for claims to recover monetary benefits that are authorized by a provision of…” the Act. However, the claims asserted do not specify the sections which would authorize the payment in the Plaintiffs’ pleadings. “While appellees may prove to be right regarding appellants’ erroneous classification of FMO positions outside of the civil service, it is clear that appellees have not affirmatively pled facts demonstrating that their claims for monetary benefits are authorized by a provision of the Civil Service Act.”  Further, the pleadings do not differentiate between acts of the City and any alleged ultra vires acts of individual officials. Nothing indicates where the City Manager is responsible for civil service job classification. The failure to allege enough jurisdictional facts to demonstrate the trial court’s jurisdiction gives rise to a right to amend the pleadings unless the jurisdictional defect may not be cured by repleading. As a result, part of the plea should have been granted and part was proper to deny, but amended pleadings should be ordered.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Campbell and Justice Parker. Opinion by Judge Parker. The attorneys listed for the City Defendants are William M. McKamie, Bettye Lynn and Bryan McWilliams.  The attorney listed for the Plaintiffs is Matt Bachop

Texarkana Court of Appeals holds county court at law has jurisdiction to hear PIA mandamus against city, despite district court language in PIA

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Kenneth Craig Miller v. Gregg County, 06-17-00091-CV (Tex. App. – Texarkana, March 20, 2018).

This is a Public Information Act (“PIA”) lawsuit in which the Texarkana Court of Appeals flipped back and forth between sections of the Government Code before modifying the trial court’s order regarding release of certain records held by Gregg County (“County”).

Miller sought a PIA request to allegedly “expose the depth and degree of the intimate relationships”  between City of East Mountain Police and Deputies of the Gregg County Sheriff’s Office. Miller filed a suit under the PIA seeking a writ of mandamus in County Court at Law #2 to compel Gregg County to disclose certain police phone log information.  The County filed a plea to the jurisdiction, which was granted.  Miller appealed.

The PIA states “A suit filed by a requestor under this section must be filed in a district court for the county in which the main offices of the governmental body are located.” TEX. GOV’T CODE ANN. § 552.321(b) (West 2012).  “District courts are always the courts of exclusive original jurisdiction for mandamus proceedings unless the constitution or a law confers such jurisdiction on another tribunal.” Miller asserts §25.0003(a) of the Texas Government Code states “In addition to other jurisdiction provided by law, a statutory county court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court has concurrent jurisdiction with the district court in: (1) civil cases in which the matter in controversy exceeds $500 but does not exceed $200,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition…” However, the Texas Legislature expressly amended the PIA in 1999 and added the requirement a suit be brought in district court. The Court of Appeals held this created a “condition precedent” to bringing a PIA mandamus action under Government Code §311.016(3). The Court of Appeals stated the question for it, then becomes, does §552.321(b) trump other sections of the Government Code. After a statutory construction analysis, the Texarkana Court held §552.321(b) does not deprive a county court at law of its jurisdiction under §25.0003(a). That being said, the Court then analyzed the evidence submitted and the extent to which the County searched for responsive phone records requested.  The County presented uncontroverted evidence that no responsive documents exist. As a result, the trial court properly granted the plea, but based on the challenge to jurisdictional facts, not the jurisdiction of a county court at law.  The court then modified the judgement, taking out references to dismissal of claims for declaratory and injunctive relief, which were not present in Miller’s prayer for relief.

If you would like to read this opinion click here. Panel consists of Chief Justice III Morriss,
Justice Moseley and Justice Burgess. Opinion by Justice Moseley. The attorney listed for the County is Robert S. Davis.  The attorney listed for Miller is Andrew R. Korn.

Since University policies did not address non-tenured professor’s situation, she was deemed an “at-will” employee with no entitlement to due process

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Lawrence Schovanec, as President of Texas Tech University, and Texas Tech University v. Fariba Assadi-Porter, 07-17-00426-CV (Tex. App. – Amarillo, March 20, 2018)

This is a due process in employment case where the Amarillo Court of Appeals reversed the denial of the University’s plea to the jurisdiction and dismissed the case.

Assadi-Porter was on a twelve-month, non-tenure track as an associate profession at Texas Tech University (“University”). She received a notice of termination at one point and was told she could grieve the termination. She asserts she relied upon the advice of human resource personnel and met with her supervisors to contest the termination. By the time she formally grieved the termination, the University deemed her grievance untimely. She sued the University and the President asserting due process violations. The University and President filed a plea to the jurisdiction, which as denied. They appealed.

A two-part test applies to due process claims: 1) does the plaintiff have a recognized liberty or property interest and 2) if so, what process is due. In the employment context, a recognized property interest exists when an employee can only be dismissed for cause.  Under Texas law, an employment relationship is presumed to be at-will, and an employer may terminate at-will employees “for good cause, for bad cause, or no cause.” An at-will employment relationship creates no property interest in continued employment. A faculty member’s employment is subject to her contract and the school’s operational policies. The University’s policies state that for non-tenure professors, they can either be terminated for cause prior to the expiration of her term, or non-renewed at the close of a term. However, the court held the policies must not be read in isolation and the next policy in the manual states the dismissal provision applies only to non-tenured faculty who have served more than six years. Assadi-Porter served for less than two.  As a result, since no specific contract or policy adoption applies to Assadi-Porter, she is presumed to be an at-will employee and has no property interest in continued employment.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Pirtle and Justice Parker. Memorandum Opinion by Judge Parker. The attorney listed for Assadi-Porter is J. Craig Johnston. The attorney listed for the University and President is Enrique M. Varela.

 

County must sue AG, not individual concealed handgun license holder, in dispute over courthouse sign says 1st District Court of Appeals

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Terry Holcomb, Sr. v. Waller County, 01-16-01005-CV, (Tex. App. – Houston [1st Dist.], March 15, 2018)

This is a concealed handgun/courthouse civil suit where the First District Court of Appeals reversed a declaratory judgment for the County.

The Waller County Courthouse houses civil and criminal courts as well as County offices. Outside, the County has a sign, pursuant to Penal Code §30.06, indicating it is a criminal violation for a concealed handgun license holder to enter the Courthouse carrying a concealed handgun.  Holcomb, a license holder, followed the procedure in Tex. Gov’t Code §411.209(a), to put the County on notice he believed the sign was used improperly since it prohibited carrying a handgun in all areas of the courthouse, not just areas accessible to the courts. In response Waller County sued Holcomb seeking a declaratory judgment his interpretation of the statute was incorrect. The trial court denied Holcomb’s plea to the jurisdiction and granted the County’s requested relief. Holcomb appealed.

Holcomb’s letter to Waller County providing notice of an ostensible violation of §411.209(a) is the basis for the County’s suit against him. As a matter of law, however, writing a letter to a political subdivision to complain about perceived unlawful action does not create subject-matter jurisdiction. Holcomb had a statutory right to notify the County of his contention. Even in the absence of a statute, he had a constitutional right to complain. Holcomb’s letter therefore does not constitute a redressable wrong. Further, no harm has befallen the County due simply to the letter. Since the Texas Attorney General has the exclusive right to seek enforcement, any legal dispute over the lawfulness of the County’s signage would be between the County and the Attorney General, not Holcomb. Waller County effectively sought and obtained a declaratory judgment in its favor as to its disagreement with the Attorney General without making him a party. Because only the Attorney General has the authority to decide whether a suit for violation of §411.209(a) is warranted, he was a necessary party and the judgment rendered in his absence was an impermissible advisory opinion. Finally, since the County utilized the suit to impact Holcomb’s statutory and constitutional right to complain about perceived unlawful action, it’s actions entitled Holcomb to attorney’s fees under the Citizens Participation Act. The declaratory judgment of the trial court is reversed, and the case is remanded for the sole purpose of awarding Holcomb attorney’s fees.

Justice Jennings concurred regarding the lack of subject-matter jurisdiction for the County to sue Waller. However, he dissented as to the remand, noting that if no jurisdiction exists, the trial court could not grant the motion to dismiss under the CPA. It would be improper for the trial court to award attorney’s fees in such a case.

If you would like to read this opinion click here. Justice Jennings concurring and dissenting opinion can be found here. Panel: Justice Jennings, Justice Bland and Justice Brown. The attorney listed for Holcomb is Thomas Edwin Walker. The attorney’s listed for the County are Elizabeth Dorsey
Sean Whittmore.

U.S. Supreme Court holds officers at scene were not required to belief innocent explanations of suspects given circumstances – probable cause therefore exists for arrests.

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District of Columbia, et al. v Wesby, et al, No. 15–1485., — U.S. – (January 22, 2018).

This is an unconstitutional false arrest case where the U.S. Supreme Court determined the officers on the scene had probable cause to make arrests of partygoers. The Court’s collection of opinions totals twenty-five pages.

D.C. police officers responded to a complaint about noise at a vacant house. Upon arriving and entering, the house was in disarray and nearly barren. When searching for the source of the noise officers discovered a makeshift strip club with several partygoers and strippers.  All pointed to someone named “Peaches” who allegedly gave them permission to use the home. After investigating and contacting Peaches, the officers discovered she had no authority to grant access to the home and the true owner did not give permission. The officers arrested the partygoers for illegal entry. After the charges were eventually dropped, the partygoers sued the officers and D.C. for false arrest.  On cross-motions for summary judgment, the trial court awarded partial summary judgment to the partygoers, holding the officers lacked probable cause to arrest. Specifically, the charge required the partygoers to have knowledge they were illegally present. While Peaches may not have had authority to give, no evidence existed the partygoers knew that. The Court of Appeals affirmed the grant of the partygoers’ summary judgment and denial of qualified immunity. In other words, the officers needed “some evidence” that the partygoers “knew or should have known they were entering against the will of the lawful owner.” The Supreme Court granted review.

A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. Courts examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Probable cause is “a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules.”  The Court went through a detailed review of what the officers knew and could reasonably infer and the totality of the circumstances.  The Court ultimately determined a reasonable officer could infer the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.  The U.S. Constitution does not require the officers to believe the partygoers given the circumstances surrounding them. Probable cause “does not require officers to rule out a suspect’s innocent explanation for suspicious facts.” The condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” The Court provided an excellent analysis of the record and why each such specific fact helps support probable cause. In holding the contrary, the Court of Appeals engaged in an “excessively technical dissection” of the factors supporting probable cause. The Court had a definite issue with the Court of Appeals analysis which took each fact in isolation, instead of as one part of the totality of circumstances. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. The Court even held that while its merit analysis ends the dispute and case, since the Court of Appeals incorrectly applied qualified immunity and the merits, the Court was going to analyze everything to correct the panel’s error anyway. For those dealing with qualified immunity issues, it is a helpful and instructive analysis. The summary judgment for the partygoers is reversed.

Justice Sotomayor concurred, but wrote separately to question the majority’s decision to slap the Court of Appeals by analyzing and ruling on matters beyond what is needed to resolve the case.

Justice Ginsburg concurred on the judgement only in part. She was concerned, the majority’s opinion sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.  However, she agreed, under a qualified immunity analysis, no “settled law” exists on the fact specific subject, so the officers were entitled to immunity.

If you would like to read this opinion click here. Justice Thomas, delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part and concurring in the judgment. GINSBURG, J., filed an opinion concurring in the judgment in part.

14th Court of Appeals holds employee does not have to file TWC charge of retaliation if the employee asserts retaliation for filing discrimination charge

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Metropolitan Transit Authority of Harris County, Texas v. Viola M. Douglas 14-17-00176-CV (Tex. App— Houston [14th Dist.] February 27, 2018)

This is an employment discrimination and retaliation case where the 14th District Court of Appeals affirmed the denial of the employer’s plea to the jurisdiction.

Douglas is a lieutenant with the Metro Police Department (“Metro”). She applied for one of two available captain positions. Metro had procedures to use an outside agency to do competency assessments of candidates, but the Chief, at the time, decided to use a five-person panel of Metro employees. The panel scored Douglas the highest of the candidates. The Chief then interviewed the candidates and promoted both male candidates. Douglas was not promoted. Douglas filed a discrimination charge with the Texas Workforce Commission Civil Rights Division (“TWC”) but after 180 days without a right-to-sue letter, Douglas filed suit. After her charge was filed, Douglas asserts the incoming Chief (who was a female) had her performance review lowered. So, she added a retaliation charge to the suit. Metro filed its plea to the jurisdiction, which the trial court denied.

An appeal is moot when there is no longer a live controversy between the parties and appellate relief would be futile. Live controversies exist so the claims are not moot. An adverse employment action in the context of a retaliation claim is not limited to conduct that constitutes ultimate employment decisions. Actionable conduct includes any actions that a reasonable employee would find materially adverse. A downgrade of an employee’s performance evaluation may constitute an adverse employment action if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. As a result, Douglas jurisdictionally asserted an adverse employment action. Douglas argues she was not required to exhaust her administrative remedies because the trial court has ancillary jurisdiction over retaliation claims that grow out of an earlier discrimination charge. The court analyzed the different U.S. Supreme Court opinions on this type of argument. Ultimately, it held that a plaintiff cannot rely upon a continuing violation theory for retaliatory conduct which occurred prior to the original charge, but when the retaliatory conduct is allegedly in response to the original charge (i.e. retaliation grows out of a discrimination charge filed), the plaintiff need not exhaust a new set of administrative remedies. As a result, the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justice Jamison, Busby and Donovan. Justice Jamison delivered the opinion of the court. The attorney listed for Douglas is Linda D. King. The attorney listed for Metropolitan Transit Authority is Daniel Nicholas Ramirez and Hao Pham Le.

Beaumont Court of Appeals holds incident report of inmate injury due to power tools was insufficient to establish actual knowledge under TTCA

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Texas Department of Criminal Justice v. Neftali Cisneros 09-17-00161-CV (Tex. App– Beaumont March 1, 2018)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case, where the Beaumont Court of Appeals reversed the denial and ruled in favor of the Texas Department of Criminal Justice (“TDCJ”).

Cisneros was injured in an accident involving a commercial grade woodworking power saw while incarcerated by the TDCJ. While Cisneros was cleaning the saw with an air hose while it was turned off, another incarcerated individual turned the power on. Cisneros lost his right hand and fingers. He sued the TDCJ for negligence. The TDCJ filed a plea to the jurisdiction, which was denied. It appealed.

The TDCJ asserted Cisneros failed to file a notice of claim within the statutory time period.  Cisneros asserts the TDCJ had actual notice of his claim and therefore, formal statutory written notice is not needed. To have such actual knowledge, the governmental unit must have: (1) knowledge of a death, injury, or property damage; (2) subjective awareness of the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) knowledge of the identity of the parties involved.  Subjective awareness is required because if a governmental entity is not aware of its fault, it does not have the same incentive to gather the information the statute is designed to provide. Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed.  Cisneros asserts that because the guards were called and an incident report was created, that is sufficient. However, the report indicated Cisneros acted negligently by failing to follow protocols requiring a supervisor to lock out the machine. The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated Cisneros’s accident does not constitute subjective awareness.  No other evidence existed within the record indicating TDCJ had knowledge of some fault of its own. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice McKeithen, Kreger and Horton. Justice Kreger delivered the opinion of the court. The attorney listed for Texas Department of Criminal Justice is Carol Garcia. The attorney listed for Neftali is Scott W. Stover and Ronald Rodriguez.

Dallas Court of Appeals upholds jury verdict holding circumstantial evidence can establish actual knowledge of a dangerous condition

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Texas Department of Transportation v. Brian Milton 05-16-00955-CV (Tex. App—- Dallas, February 14, 2018)

This is a premise defect case against the Texas Department of Transportation (“TxDOT”)  where the Dallas Court of Appeals affirmed a jury verdict against TxDOT.

Milton, a motorcyclist, was injured in a single-vehicle accident on FM Road 148. Milton asserts his tire became tied up in a groove in the roadway, causing him to end up in a ditch. [The opinion has a photo.]  He asserts TxDOT knew about the groove and failed to warn or fix it. A TxDoT maintenance supervisor had ordered “rough road ahead” signs put out at that location due to previous problems with soil expansion and contraction. It also contracted with a road crew for placing the signs as well as repair potholes. The jury was provided instructions on premise liability, including actual knowledge of an unreasonably dangerous condition. The jury returned a verdict for Milton and TxDOT appealed.

To prove actual knowledge, a licensee must show that the owner actually knew of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition could develop over time.  TxDOT contends the evidence is legally insufficient. Courts must consider the evidence in the light most favorable to support the judgment. Actual knowledge can be found if supported by circumstantial evidence. Given the photos, testimony and record, the court held a reasonable jury could conclude TxDOT had actual knowledge, irrespective of a lack of direct evidence. And while there was conflicting evidence the signage was or was not sufficient to warn, a jury could also reasonably believe one expert over another. The jury verdict is therefore affirmed.

If you would like to read this opinion click here. Panel consists of Justice Lang, Brown and Whitehill. Justice Brown delivered the opinion of the court. The attorney listed for Texas Department of Transportation is John Seth Johnson. The attorney listed for Milton is Cynthia C. Hollingsworth and Charles L. Hoedebeck.

State immune from suit asserting failure to follow forfeiture procedures

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The State of Texas v. Antonio Menchaca Jr. and Perla Nevarez 13-16-00602-CV (Tex. App– Corpus Christi February 15, 2018)

This is an interlocutory appeal from the denial of a plea to the jurisdiction where the 13th Court of Appeals reversed the denial and rendered in favor of the State.

A Cameron County District Attorney’s Office investigator sent notices to two banks that it was investigating potential money laundering by Menchaca  so the banks froze his accounts. Later, the State filed a civil forfeiture action against Menchaca seeking to seize one of Menchaca’s bank accounts. Menchaca subsequently answered and counterclaimed for declaratory judgment relief. Prior to answering Menchaca’s counterclaim, the State nonsuited its civil forfeiture action. The State then answered Menchaca’s counterclaim and filed a plea to the jurisdiction which the trial court denied. The State appealed.

Menchaca actually seeks ultra vires declaratory relief against the State of Texas for failing to comply with the law related to civil forfeitures. However, these types of suits cannot be brought against the State because the State retains its immunity. They must be brought against officials. “Menchaca’s action is defeated by sovereign immunity.”

If you would like to read this opinion click here. Panel consists of Justice Contreras, Benavides and Longoria. Justice Benavides delivered the opinion of the court. The attorney listed for Nevarez is Hon. Eduardo Lucio and Hon. Dennis Sanchez. The attorney listed for Menchaca is Hon. Dennis Sanchez and Hon. Eduardo Lucio. The attorney listed for The State of Texas is Hon. Luis V. Saenz, Hon. Matthew Kendall and Hon. Lena Chaisson-Munoz.

Filing a timely motion for new trial under the wrong cause number still invoked extended deadline for notice of appeal

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Fort Bend County v. Melissa Ann Norsworthy, et al. 14-17-00633-CV (Tex. App— Houston [14th Dist.] February 15, 2018)

This is an appellate procedure case of interest mainly to litigators. The opinion is based on Fort Bend County’s motion to consolidate two appeals.

In a wrongful death/Texas Tort Claims Act case, Fort Bend County was sued by multiple plaintiffs. At least one plaintiff was severed and different orders were issued at different times. At one point, the County filed a motion for new trial after a summary judgment motion but attached the wrong cause number by mistake. On appeal, the plaintiff in the severed case asserts the notice of appeal was defective and untimely because the appellate timetable was not extended by the motion for new trial. The court considered the procedural aspects only for this opinion.

The Texas Supreme Court has consistently admonished that appellate decisions should turn on substance instead of technicalities. So as long as the appellant’s efforts constituted a bona fide attempt to invoke appellate jurisdiction courts should construe them as successful. Filing a timely motion for new trial under the wrong cause number or in the wrong case evinces a bona fide attempt to invoke appellate jurisdiction when no one is confused about or misled as to the judgment in question. Examining the record from the hearing where this issue was discussed, the court held no party was confused or prejudiced by the technical error. As a result, the cases could be consolidated.

If you would like to read this opinion click here. Panel consists of Justice Frost, Busby and Wi. Justice Benavides Memorandum Opinion Per Curiam. The attorney listed for Morris K. Crosby and SBS / Bison Building Material, LLC is Paula Heirtzler Blazek. The attorney listed for Katlyn Norsworthy is Amy L. Mitchell. The attorney listed for Jacob David Norsworthy is Matthew Kendall. The attorneys listed for Fort bend county is Dean G. Pappas and Mary M. Markantonis. The attorney listed for Melissa Ann Norsworthy is Amy L. Mitchell.

City did not act in bad faith under PIA in cost estimate calculation; City established it produced all records discovered

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Mark Rines v. City of Carrollton 05-15-01321-CV (Tex. App—Dallas, February 13, 2018)

This is a Texas Public Information Act (“PIA”) case where the Dallas Court of Appeals affirmed the trial courts order dismissing the Requestor’s lawsuit. [Comment: this case is a rare one which also deals with cost estimates and allegations of overcharging.]

Rines, the Requestor, filed a PIA request for the civil service files of fourteen specified police officers. The City requested an Attorney General (“AG”) opinion for some documents, and issued a cost estimate letter for the remainder. After production of the uncontested documents, the City refunded some of the costs paid bythe Requestor. After receipt of the AG opinions, Rines filed suit asserting the City acted in bad faith in providing a cost estimate letter and that the City did not comply with his request. The City filed a plea to the jurisdiction which included an evidentiary hearing with testimony. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Rines appealed.

The City’s testimony included how specific City employees conducted searches for records and the results. The City established it produce all records it located which were not contested under the AG opinion request. Rines asserts documents still exist and are missing which must be produced. He also objected to the testimony of record officials who did not have personal knowledge of the records being searched. However, the testimony established the record retention individuals’ job duties entailed custodial functions of the records. Further, Rine’s objection during the hearing was not ruled upon, so provides the appeals court nothing to review. In general, the City’s jurisdictional evidence demonstrates it searched for the requested information, officially requested responsive documents from relevant individuals, and produced to appellant all responsive information it was able to locate and obtain. Rines produced no evidence as to what was missing or that it was within the City’s records. The City conclusively established it complied with release under the Act.  Rines further did not provide evidence the City’s initial computation for the cost estimate was inaccurate based on the information available at the time. He provided no evidence of how the computation occurred and what was considered. After release, the City refunded monies based on the actual numbers released, but such factored in the non-release of information discovered but subject to the AG opinion.  Nothing indicates the City did not act in good faith in its initial calculation. Simply because the end cost is different does not equate to bad faith.

If you would like to read this opinion click here. Panel consists of Justices Lang, Brown and Whitehill. Justice Lang delivered the opinion of the court. Mark Rines appeared pro se. The attorneys listed for the City are Darrell G-M Noga and Christopher Klement.

U.S. 5th Circuit remands excessive force case holding fact question exists as to whether suspect who died during arrest was resisting or not

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Darden v. City of Fort Worth, 16-11244, — F3d. –, 2018 WL 525640 (5th Circ. January 24, 2018)

This is a §1983/excessive force/ wrongful death case where the U.S. 5th Circuit Court of Appeals reversed a trial court order granting the officers’ and City’ summary judgment.

Fort Worth Police Officers W.F. Snow and Javier Romero arrested Darden, a black man who was obese, using a no-knock warrant. Darden’s estate asserts during the arrest the officers assaulted him including taseing him twice, choking him, and punched and kicked him. According to witnesses for the plaintiff, Darden “had no time to react” before “[h]e was thrown on the ground” by the officers. Witnesses testified that Darden never made any threatening gestures and did not resist arrest. The officers assert he did resist arrest requiring the force used.  Darden suffered a heart attack and died during the arrest. The court noted video footage of certain parts of the arrest were contained within the record.  Darden’s estate filed suit against the officers, individually, and the City. The district court granted summary judgment in favor of the officers and the City and dismissed all claims. Darden appeals.

Officers Snow and Romero asserted qualified immunity. The investigating physician determined the force used and taser were contributing factors but Darden suffered from a coronary arty disease. The 5th Circuit first determined the trial court errored in finding Darden’s estate did not establish the death was caused solely by the use of force. A tortfeasor takes his victim as he finds him. Darden’s preexisting medical conditions increased his risk of death during a struggle, and in that way, they contributed to his death. The evidence suggests that Darden would not have suffered a heart attack and died if the officers had not tased him, forced him onto his stomach, and applied pressure to his back. There is a genuine factual dispute over whether Darden posed an immediate safety threat to the officers.  The warrant was issued because probable cause exists the house occupants were dealing drugs, which is a serious offense, although not a violent one in and of itself. While the video shows Darden apparently surrendering, there are gaps. the circumstances and whether he was resisting cannot be determined from the record. The court was careful to point out that a jury may ultimately conclude that Darden did not comply with the officers’ commands and was actively resisting arrest.  However, for summary judgment purposes, the facts are in dispute and granting the officer’s motions was improper. The court provided a good breakdown of the types of force which are permitted in analyzing the existence of disputed facts. Finally, the court held the trial court did not analyze the claims against the City because it had already (inaccurately) determined the officers were not liable. The trial court needs to re-examine the summary judgment arguments as to the City.  The 5th Circuit remanded the case for further proceedings.

If you would like to read this opinion click here. Panel consists of Justice King, Prado and Southwick. Justice Prado delivered the opinion of the court. The attorney listed for Darden is Matthew J. Kita. The attorneys listed for the City are Laetitia Coleman Brown, Kenneth E. East, and Dee Lee Thomas, Jr.

Home-rule city’s franchise contract and right-of-way ordinance trumps pro-forma provision in a tariff, so utility must bear costs of relocation

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City of Richardson v Oncor Electric Delivery Company, LLC, 15-1008 (Tex. February 2, 2018)

This case involves a dispute between a city and a utility over who must pay relocation costs to accommodate changes to public rights-of-way.

The City of Richardson (“City”) negotiated a franchise agreement with Oncor Electric Delivery Company LLC, (“Oncor”)  requiring Oncor to bear the costs of relocating its equipment and facilities to accommodate changes to public rights-of-way. Richardson later approved the widening of thirty-two public alleys. Oncor refused to pay for the relocation. While the relocation dispute was pending, Oncor filed an unrelated case with the Public Utility Commission (PUC), seeking to alter its rates. That dispute was resolved by settlement, but the settlement included Richardson passing a tariff ordinance. The Court had to decide whether a pro-forma provision in a tariff, which sets the rates and terms for a utility’s relationship with its retail customers, trumps a prior franchise agreement, which reflects the common law rule requiring utilities to pay public right-of-way relocation costs.

By nature, a franchise agreement represents the unique conditions a city requires of a utility in exchange for the utility’s right to operate within the city. Here, the Franchise Contract incorporated a conventional right-of-way ordinance (the “ROW Ordinance”) requiring the utility, upon written notice from Richardson, to remove or relocate “at its own expense” any facilities placed in public rights-of-way. The ROW Ordinance is typical of others throughout Texas. “Tariff” is defined as “the schedule of a utility . . . containing all rates and charges stated separately by type of service, the rules and regulations of the utility, and any contracts that affect rates, charges, terms or conditions of service.” 16 Tex. Admin. Code §25.5(131). A tariff filed with the PUC governs a utility’s relationship with its customers, and it is given the force and effect of law until suspended or set aside. However, the PUC’s rules also contain a “pro-forma tariff,” the provisions of which must be incorporated exactly as written into each utility’s tariff.  The City and Oncor sued each other over payment of the relocation costs, each citing the differences between the ROW Ordinance/Franchise Contract and pro-forma tariff. The trial court granted the City’s motion for summary judgment, but the court of appeals reversed and rendered judgment for Oncor.

Under the common law, a utility’s right to use a city’s public rights-of-way is permissive and is subordinate to the public use of such rights-of-way. The Texas Supreme Court has traced this principal back at least as far as 1913.  The Utilities Code mirrors the common law, but specifically apply to “streets.”   Oncor argues that the Legislature’s use of “street” and not “alley” is significant and precludes these statutes from applying to alleys. Under statutory construction principles, every word included and excluded by the Legislature has significance. Looking to the statutory scheme, the Court found particularly relevant the Legislature’s recognition of the broad authority afforded to home-rule cities. As a home-rule city, Richardson has “exclusive original jurisdiction over the rates, operations, and services of an electric utility in areas in the municipality.” Furthermore, the Court held that in the context of home-rule cities, the recognition of a specific power does not imply that the other powers are forbidden. The  Legislature did not intended to strip municipalities of their common law right to require utilities to bear relocation costs. The language in the Tariff does not unmistakably address the relocation costs. The Tariff addresses Oncor’s relationship with end-users, which, in this case, dose not include the City.  As a result, the City retains the power to address costs through its ROW Ordinance and its Franchise Contract. The Court reversed the judgment of the court of appeals and reinstated the judgment of the trial court.

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

Failure to drive school bus to hospital instead of waiting for ambulance to assists non-responsive child is a non-use of property, which does not waive immunity says Beaumont Court of Appeals.

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Nathan Delameter et. al, v. Beaumont Independent School District (Tex. App — Beaumont, February 1, 2017)

This is a wrongful death/Texas Tort Claims Act case where the Beaumont Court of Appeals affirmed the granting of the school district’s plea to the jurisdiction.

A disabled/wheelchair bound child was receiving therapy while attending school in the Beaumont Independent School District (“BISD”). The bus BISD used to pick up the child had both a driver and an attendant. After his chair was placed on the bus, it was locked in place. The duties of the District’s employees required them to lift the chair onto the bus, to lock the chair in place, and to monitor the child’s condition on the way to school. During transport the child became unresponsive. The driver and attendant stopped the bus and called BISD headquarters. They did not drive the bus to any emergency room, but awaited the arrival of an ambulance consistent with District policies.  Unfortunately, the child died. The family brought suit against BISD asserting the bus was driven in a negligent manner causing the child to become nonresponsive. The District filed a plea to the jurisdiction, which was granted. The family appealed.

According to the Delameters, the bus’s movement eventually caused the restraints to tighten around the child causing him to lose consciousness. The Delameters also argued that stopping the school bus and waiting for an ambulance when the driver could have made it to a nearby hospital involved the use or the operation of the bus. However, after analyzing the evidence submitted, the court held nothing indicated the driver drove the bus at an unsafe speed or that he engaged in any unsafe maneuvers. Even though the Plaintiff’s evidence suggests that the child’s harness may have required adjustment, this statement amounts to no evidence to show that the harness injured or caused his death. Further, the failure to drive the bus to the hospital is a non-use of property, which does not waive immunity. As a result, the plea was property granted.

If you would like to read this opinion click here.  Panel consists of Chief Justice Kreger, Justice Horton and Justice Johnson. Memorandum Opinion by Chief Justice Horton. The attorneys listed for the Beaumont Independent School District are Frances Broussard and Christopher B. Gilbert. The attorneys listed for the Delameters are Cody A. Dishon and Paul F. Ferguson II.