U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

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U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

Ralph Clay Walsh, Jr. v. Lisa Hodge, et al., 19-10785, 2020 WL 5525397 (5th Cir. Sept. 15, 2020)

This is an appeal from Walsh’s §1983 claim alleging a violation of procedural due process in a disciplinary hearing.

Walsh, a former university professor, was accused of sexual harassment by a student at a conference. The university hired an attorney who investigated the claim and concluded that the student’s claim was substantiated. The dean of the university recommended termination. Walsh appealed and was sent a letter containing the procedure for the appeal. During the appeal, the attorney who investigated the claim was questioned but not the student. Walsh was terminated, then filed a §1983 claim against the university and various professors and school administrators asserting he was not allowed to confront his accuser. The individual defendants moved for summary judgment on grounds of qualified immunity which was partially granted and partially denied. Defendants appeal the denial.

The 5th Circuit rested their analysis on a two-pronged test: 1) whether Walsh suffered a procedural due process violation as a matter of law, then 2) whether Defendants’ conduct was objectively unreasonable in light of clearly established law at the time of the incident. The 5th Circuit found the first prong to be satisfied as, even when balancing private and public interests, Walsh had a right to have his accuser present to answer questions and raise the issue of credibility. Regardless, the 5th Circuit did not find that there was clearly established law for procedures necessary to protect a professor’s interest in avoiding career destruction after being accused of sexual harassment.   The 5th Circuit goes on to acknowledge that its sister circuits, as well as federal regulatory agencies, are split on the matter. Therefore, “[b]ecause of…conflicting, inconclusive language in past cases, [the 5th Circuit] cannot find that Defendants ‘knowingly violate[d] the law.’” The 5th Circuit ultimately reversed the district court’s denial of the qualified immunity argument in the summary judgment motion and rendered judgment in favor of the individual Defendants.

If you would like to read this opinion, click here. Panel consists of Justices Davis, Jones, and Engelhardt.

Plaintiff failed to allege breach of heightened burden under Recreational Use Statute, but should be given opportunity to amend holds Fort Worth Court of Appeals

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The City of Fort Worth v. Wesley Rust, 02-20-00130-CV (Tex. App. – Fort Worth, Oct. 22, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”)/Recreational Use Statute (“RUS”) case.

Plaintiff Rust was injured at a municipal golf course when his city-owned golf cart (Cart #60) unexpectedly accelerated, causing Rust to fall out of the cart. Rust alleges the accelerator pedal became dislodged and stuck behind the brake pedal causing the acceleration. Rust sued under the TTCA asserting a waiver of immunity due to a dangerous condition of tangible personal property—the golf cart.  The City filed a plea to the jurisdiction which was denied. The City appealed.

Texas law provides that if a landowner gives permission to another to enter his premises for recreation, the RUS limits that landowner’s liability to only those actions that were intentional or grossly negligent. The Recreational Use Statute limits the Tort Claims Act’s waiver of governmental immunity by lowering the duty of care owed to a person who enters and engages in recreation on a governmental unit’s property. While Rust argues this interplay between the RUS and TTCA is limited to claims involving motor-vehicle accidents or premise liability, the court was not persuaded. The plain language of the RUS states that it applies to governmental landowners even to the extent their immunity might be waived under the entire chapter of the TTCA, not merely a specific subsection.  Therefore Rust did not alleged a waiver of immunity.  While Rust also asserts factual questions exist which prevent granting the plea, Rust failed to meet the initial burden to properly plead a waiver. The court held “If we were to search for a fact issue on the City’s gross negligence, it would relieve Rust of his burden to allege facts giving fair notice of a waiver of immunity under the TCA as limited by the RUS.” So, it declined to review the factual evidence. However, the court noted the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, so Rust should be permitted to amend his pleadings to allege gross negligence.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr and Justice Bassel.  Opinion by Justice Gabriel.

 

The Eighth Court of Appeals dismissed a pro se appellant’s case because the appellant failed to file a reporter’s record and the appellant’s briefing was fatally inadequate. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Claudia Brown, Justice of the Peace for Precinct 4, Place #1 v. State of Texas, No. 08-19-00110-CV (Tex. App.—El Paso October 12, 2020).

In this appeal from an elected official removal case, the pro se appellant appealed from her removal by the trial court for misconduct and incompetence.  The Court of Appeals affirmed the trial court’s removal because the appellant failed to adequately brief her appeal and failed to submit a reporter’s record, which is required of all appellants, including pro se appellants.

The appellant was the Justice of the Peace for Bell County.  The Bell County Attorney filed suit against the appellant to have her removed from office for official misconduct and incompetence. The charges were upheld by a jury after a three-day trial.  The appellant appealed the decision as a pro se litigant (although the appellant was represented at the trial court).  The clerk’s office filed the clerk’s record in the appellant’s appeal, but the appellant did not file the reporter’s record although it existed and the appellate court requested it multiple times.  The appellant filed brief with attachments that either: (1) did not exist in the trial court; or (2) referenced the unfilled reporter’s record.  The court of appeals affirmed the trial court’s judgment holding that the appellant waived her issues on appeal with inadequate briefing and the lack of a reporter’s record.

“A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Hughes v. Armadillo Prop. for Lina Roberts, No. 03-15- 00698-CV, 2016 WL 5349380, at *2 (Tex.App.–Austin Sep. 20, 2016, no pet.)(mem. op.); Robb Horizon Comm. Improvement Ass’n, Inc., 417 S.W.3d 585, 590 (Tex.App.–El Paso 2013, no pet.).”  The Texas Rules of Appellate Procedure require that briefing provide the issues for review with clear arguments and references to the record.  If a reporter’s record is not filed, the court can only review those issues that can be determined by the clerk’s record.  Tex.R.App.P. 37.3(c)(1). Also, attachments that are not in the record cannot be considered by the appellate court. Tex.R.App.P. 34.1.  The appellate court gave the appellant multiple chances to cure these issues.

The Court of Appeals held that the appellant’s failure to clearly state her issues and the lack of a reporter’s record narrowed the court’s review to the clerk’s record required them to find that the trial court acted appropriately. The Court of Appeals affirmed the trial court’s order of removal.

If you would like to read this opinion click here.   Panel consists of Chief Justice Alley and Justices Rodriguez and Palafox. Opinion by Justice Yvonne T. Rodriguez.

 

First District holds county attorney could not bring suit against commissioner’s court for budget policies

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Hobbs, Williamson County Attorney v. Dan A. Gattis, et. al., 01-19-00025-CV (Tex. App. – Houston [1st Dist.], Oct. 15, 2020).

This is a declaratory judgment case where the First District Court of Appeals affirmed the dismissal of the County Attorney’s challenge to a commissioner court policy regarding the budget.

Hobbs, acting in his official capacity as the Williamson County Attorney, sued the Williamson County Judge and Williamson County Commissioners, all in their official capacities, seeking a declaratory judgment that certain policies and orders were void for exceeding the power of the Commissioners Court.  The County defendants filed a plea to the jurisdiction which was granted. Hobbs appealed.

Hobbs challenged a policy that appeared to limit the salaries of his employees, even though the budget allocated for his office had sufficient funds.  The County’s plea challenged the pleadings only and were taken as true. The County defendants argued that Hobbs had no authority to bring suit in his official capacity.  Since Hobbs was only complaining about budgetary issues, the defendants did not invade his elected sphere of control. However, the funds had been budgeted for the County Attorney’s office and Hobbs complained of the policies imposed on how those funds were spent (specifically regarding hiring and salary aspects of assistant county attorneys). A commissioner’s court has broad discretion on budgetary decisions, and such decisions are ordinarily protected from judicial scrutiny by the separation of powers doctrine. But it is limited by certain judicial controls. A commissioner’s court and county officers may not interfere with or usurp the duties delegated by the Texas Constitution and by statutes to independent county officials and their employees.  However, the live pleadings did not list a controversy where potential employees did not accept employment due to the limits or that any other employees were affected. Alleging the policies could hamper Hobb’s office is an allegation of an uncertain or contingent future controversy, not an allegation of a live controversy.  Further, the live pleadings do not show Hobbs, in his official capacity, suffered a distinct and individualized injury. Hobbs acknowledged in his pleading that the county attorney has no individual stake differing from that of other Williamson County elected officials since he is suing in his official capacity only.  A district court has certain constitutional supervisory controls of the commissioner’s court; however, those require an act that is illegal, unreasonable or arbitrary. The challenged policy does not necessarily reduce any employee salary as compared to the amount adopted in the budget. Given the broad budgetary discretion of the commissioner’s court, Hobbs failed to allege facts triggering the district court’s constitutional supervisory control. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Kelly, Goodman, and Countiss.  Opinion by Justice Kelly.

San Antonio Court of Appeals holds forfeited councilmember can only seek reinstatement through quo warranto proceeding

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City of Leon Valley v. Benny Martinez, 04-19-00879-CV (Tex. App. – San Antonio, August 19, 2020, no pet. h.)

This is a council forfeiture case which the San Antonio Court of Appeals held could only be brought in a quo warranto proceeding.

Section 3.12 of the city charter describes the procedures for council investigations. Benny Martinez was a sitting city council member. After several complaints were filed against him for alleged charter violations the city council held §3.12 hearings. The city council ultimately declared he forfeited his place on the council and removed him. Martinez sued, alleging the procedures used to remove him from office violated his due process rights. He sought a declaratory judgment “to determine [his] right to be reinstated following his removal [from Place 4].”  The city filed a plea to the jurisdiction, which was denied. The city filed this interlocutory appeal.

A writ of quo warranto is an extraordinary remedy available to determine disputed questions about the proper person entitled to hold a public office and exercise its functions. See generally Tex. Civ. Prac. & Rem. Code § 66.001. The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning who may hold such office. The court held the plain and unambiguous language of the quo warranto statute confers standing exclusively on the State, not a private litigant. While Martinez asserted his removal was void (thereby trying to fall within an exception to the exclusivity), the court held none of Martinez’s factual allegations allege void acts, only voidable acts if proven. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Martinez, Justice Alvarez and Justice Rios. Opinion by Justice Alvarez.

 

 

The Thirteenth Court of Appeals held trial court must use substantial evidence standard when reviewing SOB permit denials

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Larry Mark Polsky, esq. v. Sheriff Omar Lucio and Cameron County, No. 13-19-00062-CV (Tex. App.—Corpus Christi September 24, 2020) (mem. op.).

In this sexually-oriented business case, the 13th Court of Appeals reversed the grant of a dismissal order in favor of the County and Sheriff.

The plaintiff filed an application for a permit with the County to open a sexually oriented business near a public beach in Cameron County.  The Sheriff denied the permit on the basis that the public beach was a “public park” as defined by the County.  The plaintiff appealed to the governing body of the County which held a hearing. The County upheld the denial of the permit.  The plaintiff appealed to the trial court, who used the “abuse of discretion” standard to uphold the County’s decision.  The plaintiff then appealed to the Court of Appeals.

Counties have the authority to regulate sexually oriented business locations under Chapter 243 of the Texas Local Government Code.   This County had a regulation prohibiting a sexually oriented business from opening within 1500 feet of a public park.  The County interpreted the regulation to mean that a public beach is a public park.  The Court of Appeals held “[c]ontrary to the County’s position when cities and counties undertake the regulation of SOBs, they do so in an administrative capacity, and as such, the denial of an SOB permit is reviewed under the substantial evidence rule.”  Under the substantial evidence rule, the analysis is whether substantial evidence supports the government’s decision.  This is in contrast to the abuse of discretion standard which allows a court to overturn a decision only if the government abused its discretion in making the decision.

The Court of Appeals held that the trial court used the wrong standard and remanded the case back to the trial court.

If you would like to read this opinion click here.   The panel consists of Justices Benavides, Longoria, and Perkes. Opinion by Justice Perkes.

Attorney’s fees for breach of contract under Tex. Loc. Gov’t Code §271.153 valid only if equitable and just – denied for much smaller change order amount

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Dowtech Specialty Contractors, Inc. v. City of Weinert, 11-18-00246-CV (Tex. App. – Eastland, September 25, 2020)(mem. op.).

This is a breach of contract dispute where the Eastland Court of Appeals affirmed a trial court judgment awarding Dowtech a small amount of damages, but denied the contract remainder and attorney’s fees.

The City’s water supply is a combination of well water and water obtained from the North Central Texas Municipal Water Authority (the NCTMWA). The well water needed to be treated so the City, using several grants, decided to construct a pressurized system to keep the well water separate from NCTMWA water. During the bid process, the engineer advised the bidders to adjust a line item for instrumentation to allow NCTMWA to control certain valves/parts, but also a separate control system for the City. The revised bid specifically noted that not all necessary components for a full system were specified and the contractor must provide all items needed for a functional system. Dowtech was awarded the bid, but the main difference from the losing bidder was the cost of line item. Later, the City adjusted the pumphouse and issued a change order. When Dowtech asserted it was finished, the City noted it had not installed all parts of the instrumentation system, to which Dowtech asserted the bid did not require an operational system. After Dowtech submitted a final invoice, to which the City asserted it breached the agreement and refused to pay the final invoice. Dowtech sued the City for breach of contract and sought to recover both the contract balance and the charges for the additional work.  The City counterclaimed.  After a bench trial, the trial court awarded Dowtech $2,052.50 for the pumphouse work, but that Dowtech did not complete all work required by the contract so was not entitled to the contract price. It also denied the request for attorney’s fees and interest. Dowtech appealed.

The Court of Appeals held Dowtech did not plead the affirmative defense that its performance under the contract was excused and does not argue that the issue was tried by consent. But even if it had, the evidence was legally and factually sufficient to support the trial court’s determination Dowtech failed to complete all contracted work. Further, Dowtech did not file a motion for new trial or otherwise object to the trial court’s failure to award prejudgment interest on the change order amount. Therefore, Dowtech failed to preserve this issue for appeal.  Additionally, because the suit was brought under Tex. Loc. Gov’t Code §271.153, attorney’s fees can only be awarded if equitable and just. The trial court had discretion to award fees and the fact both parties failed in their primary claims (with Dowtech winning only as to the much smaller change order amount), the Court of Appeals felt the record did not reflect an arbitrary or unreasonable decision by the trial judge. The judgment was affirmed.

If you would like to read this opinion click here. The panel consists of Chief Justice Bailey, Justice Stretcher, and Senior Justice Wright.  Memorandum opinion by  Chief Justice Bailey.

 

The Second Court of Appeals held that a plaintiff who resigns cannot prove an adverse employment action when the only evidence of constructive discharge was forthcoming investigation

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Univ. of North Tex. Sys. v. Lisa Barringer, No. 02-19-00378-CV (Tex. App.—Fort Worth September 10, 2020) (mem. op.).

In this discrimination case, the plaintiff sued the University for age discrimination after resigning from her position.  The Court of Appeals held that she had failed to provide sufficient evidence of constructive discharge for his resignation and dismissed the case.

The plaintiff was a University employee who was placed on paid administrative leave prior to an investigation related to her lack of preparation for a scheduled presentation wand inappropriate comments.  After being placed on paid administrative leave, she resigned.  After she resigned, she filed a claim with the EEOC/Texas Workforce Commission which issued a right to sue letter.  She filed suit and  University filed a plea to the jurisdiction. The trial court denied the plea and the University appealed.

An age discrimination claim under the Texas Commission on Human Rights Act (TCHRA) requires showing that the individual has suffered an adverse employment action.  Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012).  Proof of constructive discharge, where an employee reasonably feels compelled to resign, can demonstrate an adverse employment action.  Baylor Univ. v. Coley, 221 S.W.3d 599, 604–05 (Tex. 2007).  “But potential disciplinary action, investigations into alleged work-place violations, or work-place criticisms are insufficient alone to cause a reasonable person to resign.”  Also, personality conflicts or arguments are insufficient to create proof of constructive discharge. The Court of Appeals held the plaintiff’s evidence was insufficient, reversed the denial of the plea, and dismissed the plaintiff’s case.

If you would like to read this opinion click here.   Panel consists of Justices Kerr, Birdwell, and Womack. Opinion by Justice Womack.

 

Amarillo Court of Appeals holds findings of fact and conclusions of law improper for plea to the jurisdiction and remanded annexation case for trial

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Hill, et al. v City of Fair Oaks Ranch, 07-19-00037-CV (Tex. App. – Amarillo, Sep. 16, 2020)(mem. Op).

This is an annexation dispute where the Amarillo Court of Appeals reversed the grant of the City’s plea to the jurisdiction and remanded for trial.

In 2015 and 2016, the City was a general-law municipality and it did not annex any properties during those years. In 2017 it became a home-rule city and later that year adopted eleven annexation ordinances. Property owners challenged five of the ordinances. The five annexations added 20% to the City’s geographic area. The property owners challenge one annexation for violating the 1000-ft width requirement, and all five asserting they exceeded the maximum amount allowed by law for annexations. The City filed a plea to the jurisdiction, which the trial court granted. The owners appealed.

Chapter 43 of the Texas Local Government Code (dealing with annexation) waives immunity in limited circumstances. The issue is therefore only one of standing where owners have standing to challenge void ordinances but not procedural irregularities in the adoption process. Here, the landowners challenged the City’s involuntary annexation of the five contested areas as being void ab initio.  While the court acknowledged the owners did not properly brief the 1000-ft arguments, they did properly allege the annexations exceeded the area allowed within a given year under § 43.055.  Those allegations, if proven, would establish that the City’s annexation ordinances are void, not merely voidable.  The court determined that because the plea must be analyzed “under the rubric of a summary judgment” findings of fact and conclusions of law are not proper because there has been no conventional trial on the merits and are superfluous.  In closing, the court noted the parties “would have this court drift into the merits by engaging in statutory construction of the relevant statutes and determining whether the City violated those statutes. Such an analysis would be premature and beyond the scope of a de novo review…”  As a result, the order granting the plea was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Pirtle, Parker and Doss.

Officers’ and City’s appeal dismissed by U.S. 5th Circuit because their dismissal “with prejudice” argument inapplicable when inmate could still get conviction reversed

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Kerry Max Cook v. City of Tyler, Texas, et al., 19-40144, 2020 WL 5268509 (5th Cir. Sept. 4, 2020)

This is an appeal and cross-appeal from a dismissal of Cook’s §1983 claim seeking damages suffered from a series of wrongful prosecutions, convictions, and imprisonment, which the U.S. 5th Circuit affirmed.

Kerry Cook filed a §1983 claim, alleging official misconduct via a series of wrongful prosecutions, convictions, and imprisonment. However, the district court, citing Heck v. Humphrey (512 U.S. 477 (1986)), found that a malicious prosecution §1983 claim does not accrue until his conviction is formally terminated in his favor, the Texas Court of Criminal Appeals vacates his conviction, and the State dismisses the indictment against him. The district court dismissed Cook’s suit “with prejudice to the claims being asserted again until the Heck conditions are met…” The City and officer Defendants appealed the dismissal as being without prejudice, insisting the dismissal must be with prejudice. Cook asserted the dismissal was not final, not appealable, and therefore the 5th Circuit lacked subject matter jurisdiction.

The 5th Circuit analyzed two questions: 1) whether the dismissal was with or without prejudice, and 2) whether the dismissal was final and appealable. To the first question, the 5th Circuit found that the dismissal language is taken near verbatim from non-prejudicial language recommended in Johnson v. McElveen (101 F.3d 423 (5th Cir. 1996)), when a trial court is dismissing a case under the condition that it may be reasserted if the Heck conditions are met. To the second question, the 5th Circuit held the dismissal was not final, and thus not appealable because the district court contemplated Cook satisfying the Heck conditions at a later date. The 5th Circuit contrasted this court’s Heck dismissal with other, appealable, dismissals where the issue to be determined was whether Heck was even applicable.

If you would like to read this per curiam opinion, click here. The panel consists of Justices Davis, Jones, and Willett.

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

If you would like to read this opinion click here.   Panel consists of Justices Goodman, Landau, and Hightower.  Opinion by Justice Richard Hightower.

U.S. 5th Circuit holds no deliberate indifference alleged requiring jailers to protect inmate from attack by another inmate

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Torres v. Livingston, 19-40470, 2020 WL 4933063 (5th  Cir. Aug. 24, 2020).

This is an appeal from a dismissal of an inmate’s § 1983 claims which the U.S. 5th Circuit affirmed.

Christopher Torres worked as an inmate janitor in an administrative segregation unit.  While working, another innate requested an officer to pick up photos that were on the floor just outside his cell. The officer, as a matter of routine in fulfilling inmate requests, directed Torres to go ahead and pick up the photos. While bending over to pick up the photos, the inmate stabbed Torres in his neck. Torres sued a correctional officer and several staff members and administrators per 42 U.S.C. § 1983 for allegedly failing to protect him from an inmate attack.

To hold an officer liable under the Eighth Amendment it mush be shown that the officer acted with deliberate indifference to the inmate’s health or safety. The U.S. Fifth Circuit found that Torres did not offer any facts suggesting the jailor knew of and disregarded a substantial risk to his health and safety. As a result, Torres failed to state § 1983 claim. Additionally, Torres’s failure to allege facts amounting to a constitutional violation for a failure to train or supervise.

If you would like to read this opinion click here. The panel consists of Justices Smith, Willett and Duncan.  Opinion by Justice Smith.

The Third Court of Appeals held that no implied authority exists for actions of a state agency without a showing that the implied authority is required to effectively perform a statutorily expressed responsibility.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

University of Texas at Austin President Jay Hartzell, et al. v. S.O., et al., No. 03-19-00131-CV (Tex. App.—Austin September 4, 2020).

In this ultra virus University case, the plaintiff sued University officials for exceeding their authority in attempting to revoke her Ph.D after she had already graduated from the University.    The Court of Appeals held that the University did exceed its authority in attempting to revoke her earned degree because they do not have specific statutory authority to revoke degrees and the authority to revoke degrees is not essential to its statutory authority to award degrees.

The plaintiff was awarded a Ph.D in 2008.  In 2012, the University conducted an investigation and attempted to revoke her Ph.D for academic misconduct in 2014.  The plaintiff sued the University stating that her due process rights were violated by the University’s procedure.  The University undid its revocation and instituted a different procedure to investigate the possibility of revoking the plaintiff’s degree again.  In response to the University’s renewed efforts, the plaintiff sued the University in this suit as an ultra vires claim.  The University defendants filed a plea to the jurisdiction arguing they had the authority to revoke the degree because its rules allowed it and because the authority to revoke degrees is implied with the authority to award degrees.  This case has been through the appellate process once on the issue of ripeness.  The appellate court held that her complaint was ripe and the case was sent back to the trial court.  Upon return, the trial court granted-in-part and denied-in-part the plea.  In this appeal, the issue is whether the University has the authority to revoke degrees, the basis of the plaintiff’s ultra vires claim.

An ultra vires claim waives immunity if the plaintiff can show that an official’s conduct exceeded their granted authority.  Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).  State agencies, like the University, only have the authority that they are given by statute and may only adopt rules pursuant to their statutory authority.  Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008).  State law gives a University the authority to “award” a degree, but not to revoke one.  Tex. Educ. Code § 65.31(b).  Authority can be implied if the agency needs the power in order to allow the agency to effectively carry out the functions necessary for its expressed authority.  Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192-93 (Tex. 2007).   The Court of Appeals held that the authority to award degrees does not require the authority to revoked degrees, and therefore revoking a degree after a student has earned it and graduated is an ultra vires act waiving sovereign immunity.

The Court also affirmed the trial court’s denial of attorney’s fees from the plaintiff.  Even though the plaintiff prevailed, the legal questions were ones that needed to be decided and an appellate court gives a trial court wide discretion in determining attorney’s fees so long there is no abuse of discretion.

Justice Kelly issued a concurring and dissenting opinion stating that the University does have the authority to revoke a student’s degree, but that the claims are not ripe.

If you would like to read this opinion click here.   Panel consists of Justices Goodwin, Baker, and Kelly. Opinion by Justice Thomas Baker.  Concurring/dissenting opinion by Justice Kelly can be found here.

Dallas Court of Appeals holds property owners failed to establish jurisdiction in annexation case where City was prevented from holding first reading of annexation ordinance

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City of Terrell, Texas, et al. v. Frederick George Edmonds, et al., 05-19-01248-CV  and 05-19-01382-CV  (Tex. App. – Dallas, September 8, 2020)

These are consolidated appeals from the case where several property owners sought to prevent annexation of a 1,000-foot wide strip of land. The Dallas Court of Appeals reversed the injunction order and dismissed the claims.

The City is surrounded by four major entryways and sought to annex 1,000-foot strips along each highway. The areas were divided into discrete subsections for annexation. The City’s Home Rule Charter requires that a proposed ordinance must be considered at two separate meetings for the ordinance to be effective. The agenda designated the proposed annexation areas into 10 individual ordinances, intending to annex separate phases over time.  However, before the first ordinance reading could occur, the plaintiffs obtained a temporary restraining order against the City. Plaintiff’s sought declaratory relief under the Texas Open Meetings Act (“TOMA”), Chapter 43 of the Texas Local Government Code (which regulates annexations) and injunction relief. The City filed a plea to the jurisdiction. However, the trial court conducted a temporary injunctive hearing and granted the temporary relief. The City appealed the injunction order.  Approximately thirty days after the injunction order, the trial court denied the City’s plea to the jurisdiction. The City filed a separate appeal.

As to the temporary injunction order, the City argued the issue was not yet ripe as the first reading of an ordinance is not the passage of an ordinance subjecting the plaintiffs to a likely injury. After analyzing the record, the panel held the City had taken no action to violate either (i) the City Charter or (ii) the Texas Local Government Code because the City had made no final decision regarding the proposed annexation ordinances.  The trial court lacked subject-matter jurisdiction to grant the TRO and injunction. Further, quo warranto is the only means to challenge annexation proceedings which are not void from the start. As a result, the plaintiffs cannot circumvent the quo warranto doctrine by bringing a TOMA claim. The court reversed the granting of the injunction and dismissed the plaintiffs’ claims based on a lack of jurisdiction.

If you would like to read this opinion click here.  Panel consists of Justice Schenck,
Justice Osborne and Justice Pedersen.

 

The U.S. Fifth Circuit Court of Appeals held that sign ordinances cannot treat off-premise and on-premise signs differently if the regulation of such signs includes regulation non-commercial content. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Reagan Nat’l Advertising of Austin, Inc.; Lamar Advantage Outdoor Co. v. City of Austin, No. 19-50354 (5th Cir. August 25, 2020).

In this First Amendment sign case, the U.S.  Fifth Circuit held that the distinction between off-premise and on-premise signs is a prohibited content-based distinction under Reed v. Town of Gilbert if the regulation could include non-commercial content.

The plaintiff sign companies desired to digitize their off-premise signs (billboards) in the City. Their applications were denied by the City because the City prohibits the digitization of off-premises signs, but allows the digitization of on-premises signs.  The City defined off-premises sign as, “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.”  The plaintiffs asserted the distinction between on-premises and off-premises signs was a violation of the First Amendment as a content-based distinction that cannot withstand strict scrutiny.  After the suit was filed, the City amended its sign ordinance.  The City argued that the difference between on-premises and off-premises was content-neutral and that it should only be reviewed under intermediate scrutiny. The trial court held that the ordinance was valid under intermediate scrutiny and the plaintiffs appealed.

There are two levels of scrutiny that are used to review regulations that implicate free speech.  Strict scrutiny is used to review content-based regulations that regulate non-commercial speech.  To pass strict scrutiny, a City must prove that “the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015).  Intermediate scrutiny is used when the content is commercial or if the ordinance is content-neutral.  Centr. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980).  To pass intermediate scrutiny, a City has to prove that the regulation directly advances a substantial government interest and is not more extensive than is necessary to serve that interest.  See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980). Content-based commercial speech may be regulated if it meets an intermediate level of scrutiny.  Id.  Any regulation of speech other than commercial speech must meet strict scrutiny.  Reed, 576 U.S. at  163, (2015)(“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.).

The Court held that the City’s regulation of off-premises signs differently from on-premises signs was not a regulation of commercial speech and was not content-neutral and therefore had to be reviewed under strict scrutiny.  The regulation is content-based because the sign’s content, other than its commercial content, determines whether it falls under a stricter regulation.  The Court held the regulation did not meet the requirements of strict scrutiny and therefore was invalid.  The Court declined to hold whether the lesser level of scrutiny still applied to a content-based regulation that only applies to commercial speech.

If you would like to read this opinion click here.   Panel consists of Judges Elrod, Southwick, and Haynes. Opinion by Justice Jennifer Walker Elrod.