Texas Supreme Court holds Plaintiff’s employer properly filed notice of claim under city charter on behalf of employee

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Leonarda Leach v City of Tyler, 21-0606 (Tex. September 16, 2022), per curiam.  

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Plaintiff provided proper notice of claim to the City in order to waive immunity.  

 Leondra Leach, while working for his employer Ameri-Tex, alleged that an improperly secured piece of lumber flew off a truck owned by the City of Tyler and struck him in the head. The City asserted in a summary judgment that Leach had failed to provide the City with timely notice of his claim. The TTCA requires notice of claim within one hundred eighty days of the injury. The City of Tyler’s charter requires notice of tort claims within thirty days. The City has promulgated a “Claims Notice” form that a claimant may submit to comply with the city charter’s requirement. Ameri-Tex completed and filed that form seven days after the incident. Ameri-Tex told Leach that it would file a single notice both for itself and for Leach, so Leach himself filed nothing. The issue became whether the notice received from Ameri-Tex provided notice of claim as to Leach.   The trial court agreed and granted summary judgment in favor of the City; the court of appeals affirmed (summary found here). Leach appealed.  

While the Ameri-Tex notice of claim listed only itself as the claimant, the form clearly mentioned Leach, by name, and his purported injuries. It also summarized how the incident occurred. Notice of this sort satisfies the TTCA’s demand for basic information. Next, the City charter has its own notice requirements which the TTCA has “ratified and approved” through Section 101.101(a). Therefore, Leach must have also satisfied the 30-day requirement. Ameri-Tex’s notice identifies him in the description of the incident (not the claimant section) but provides the basic information needed for such notice of claim. The City’s point is that, even if Leach’s name appears in the “injuries sustained” section of the form, his name does not appear on the line denominated “Claimant.” The Court held “[t]he City could not reasonably conclude, however, that Ameri-Tex named Leach, provided Leach’s contact information, and detailed Leach’s injury for any reason other than to notify the City of that injury.” Further, while Ameri-Tex did not fill out the “form” provision which requires the anticipated value of the injuries, the charter is the law, not the form. The charter only requires the anticipated value of property damage, not personal injury. While the City points to the public policies behind requiring such information in the form, injured citizens are bound by enacted text, not underlying legislative motivations. The notice on behalf of Leach more than complies with the plain language of the statute and the city charter. As a result, the City’s motion should have been denied.  

If you would like to read this opinion, click here. Per curiam opinion. Docket page found here.  

Fourth Court of Appeals holds civil service employee established jurisdiction for denial of due process claim

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City of Laredo  and City of Laredo Municipal Civil Service Commission v. Tony H. Moreno, 04-21-00413-CV, (Tex. App – San Antonio, Aug. 24, 2022) 

This is a civil service appeal where the Fourth Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.  

Moreno was the City of Laredo’s Water Treatment Superintendent. He was terminated after the City had to issue boiled water notices due to low chlorine levels being detected. The City charter provides such employees with certain civil service protections. Moreno was terminated and appealed to the civil service commission, which affirmed the termination. Moreno filed suit. The City filed a plea to the jurisdiction, which was denied. The City appealed.  

When an administrative body’s decision adversely affects a vested property right or a constitutional right, an inherent right of appeal exists. Civil service employees have a vested property interest in their continued employment. Civil service protection provided in a charter provision does not fall under the same civil service process used for police and fire employees. Here, the Commission’s rules lack a specific provision outlining an employee’s right to judicial appeal. Moreno asserts the City failed to provide him with a termination letter stating the specific violations as required by the rules of why he was terminated, thereby denying him due process. Since this was only at the plea to the jurisdiction stage, the court held Moreno plead sufficient facts to trigger a waiver of immunity under the due process clause.  

Panel consists of Justices Alvarez, Rios, and Rodriguez. Affirmed. Memorandum Opinion by Justice Rios can be read here. Docket page with attorney information can be found here. 

San Antonio Court of Appeals reforms judgement for attorney fees awarded against a complainant for filing a frivolous ethics complaint

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Lakshmana Viswanath v. The City of Laredo, 04-21-00413-CV (Tex. App. – San Antonio, Aug. 24, 2022).

This is the second appeal arising from the City of Laredo’s ethics commission decision.  In this case, the San Antonio Court of Appeals reformed an award of attorney’s fees in favor of the City.

Viswanath is the founder of a government watchdog group known as Our Laredo, who ran for city council and was defeated.  Viswanath filed several ethics complaints against various individuals at the City over the course of a year. One complaint was filed against the then-co-city managers arguing they were required to “ensure” that a certain councilmember forfeit his seat due to an alleged conflict of interest.  The City’s ethics commission dismissed the complaint holding it did not allege a violation of the ethics code and imposed a sanction of attorney’s fees for filing a frivolous complaint. The San Antonio Court of Appeals affirmed the frivolous finding in the first appeal. (Summary found here).  The case was remanded for a determination of attorney’s fees, which the trial court ruled upon.  This appeal deals only with the imposition of the sanction of attorney’s fees.

Viswanath’s argument asserts that the City could only consider evidence submitted during the ethics commission hearing, not evidence submitted afterward. However, the Ethics Code does not require evidence during the hearing to uphold the award. Instead, the Code directs a reviewing court to review the record of the hearing before the Ethics Commission. Logically, the record of the hearing might include evidence to support an award of attorney fees because the Ethics Commission’s attorney cannot invoice his services until after the hearing and after completing legal services.  However, importantly for the court, the record submitted after remand does not show the full extent of the fees were “part of the record of the hearing before the Ethics Commission.”  The full fees totaled $7,900.68.  During the hearing, the Ethics Commission attorney advised he had expended an estimated $4,500 in legal services to date but that did not include the costs for the hearing. The City argued in the alternative that if the record did not support the full award, the appellate court should reform the judgment to be the estimate given at the hearing. Because the court has the authority to reform a judgment of attorney fees if reformed the judgment to award $4,500 in attorney fees and affirmed the judgment as reformed.

If you would like to read this opinion click here. Panel consists of Chief Justice Martinez, Justices Chapa and Valenzuela.

Fourth Court of Appeals holds that operation of wheelchair ramp on public bus does not trigger waiver of immunity under Tort Claims Act

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VIA Metropolitan Transit Authority v. Manuel Flores, No. 04-21-00233-CV (Tex.App.—San Antonio, August 3, 2022)

This case stems from a trial court’s denial of VIA Metropolitan Transit Authority’s (“VIA”) plea to the jurisdiction, alleging no waiver of immunity exists for the claims. The Fourth Court of Appeals reversed the trial court’s ruling and dismisses all claims against VIA.

Manuel Flores (“Flores”) uses a motorized wheelchair. Several VIA buses, which provide public transportation, are equipped with wheelchair ramp devices that allow for accessibility to and from the bus.  When a VIA bus picked up Flores, the VIA driver lowered the wheelchair ramp and began preparing the wheelchair-accessible area of the bus to secure Flores once the bus resumed movement. While the driver was in the middle of preparations, Flores unsuccessfully attempted to board the bus.  He did not align the wheels of his wheelchair with the ramp, and fell to the ground, injuring himself.  Flores sued VIA, claiming the driver’s negligent operation or use of a motor-driven vehicle, specifically the bus and/or automated ramp device, established a waiver under the Texas Tort Claims Act (“TTCA”).

The Fourth Court of Appeals held that, under the ordinary, everyday meaning of the words “operation” and “use,” the deployment of a wheelchair ramp and preparation of the wheelchair-accessible area did not constitute helping Flores board the bus. Further, even if doing so did constitute the operation of the bus, the appellate court found that there was no nexus between Flores’ injury and the operation or use of the vehicle. Video recordings and time-stamped screenshots were admitted showing Flores’ unsuccessful attempt to board the bus, which included the driver still preparing the internal area away from where Flores fell. Since the driver was unaware that Flores had fallen until after the fact and because the driver did not even have an opportunity to assist Flores with boarding the bus, the court held that there would have been no nexus between Flores’ injury and the operation or use of a motor-driven vehicle.

As asides, the appellate court dismissed Flores’ argument that the driver failed to follow VIA policy, as Flores first had to establish waiver of immunity before invoking a claim. Further, Flores’ arguments citing compliance with federal law were moot because he not only failed to raise them at the trial level but also because the cited law did not waive VIA’s immunity. Ultimately, the Fourth Court of Appeals reversed the trial court’s denial of VIA’s plea to the jurisdiction, dismissing all of Flores’ claims.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Rios and Rodriguez. Memorandum opinion by Justice Rodriguez.

14th Court of Appeals in Houston holds TxDOT had actual notice of dangerous condition based on crash reports and information within record

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Texas Department of Transportation v Singh, 14-20-00694-CV (Tex. App. — Houston [14th Dist.], August 11, 2022).

Singh sued the Texas Department of Transportation for negligence after his vehicle crashed on a roadway TxDOT had recently rebuilt. The new highway surface was very slick when wet, and it had been raining the day of the accident. According to the crash report, six other spin-out crashes occurred in the same area on the same day. TxDOT filed a plea to the jurisdiction arguing, among other things, that Singh had failed to provide timely notice of claim. The trial court denied the plea and TxDOT appealed

After analyzing the pleadings and facts submitted, the court held there is some evidence that as of December 5, 2016, the day after the accident, TxDOT had subjective awareness that Amrinder Singh of a specified address and driver’s license number was involved in an automobile accident on December 4, 2016 at 6:50 a.m. in the 15500 block of Highway 290, a section of the highway that TxDOT had recently rebuilt. As a result, written claim notice was not needed as actual notice existed. TxDOT additionally had subjective awareness at that time that Singh had suffered possible injuries in the accident. Six other crashes occurred in the same area in the same timeframe due to the slickness of the new road surface when wet. The court held the plea was properly denied.

If you would like to reach this opinion click here.

14th Court of Appeals holds fact questions on “emergency” prevented granting of plea to the jurisdiction

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City of Houston v Arellano, 14-21-00117-CV (Tex. App. — Houston [14th Dist], August 11, 2022).

This is a vehicle accident/emergency responder case where the 14th Court of Appeals held fact questions exist as to whether the driver was responding to an actual emergency.

Dang was a maintenance mechanic for the City. As part of his duties, he maintained and repaired HVAC systems in City buildings. On the evening of the traffic accident, Dang was at home on-call. At approximately 10 p.m., he received a service call to notify him that a fire station had no heat. After the call, he immediately clocked in for work remotely. He drove to another fire station, dropped off his personal vehicle, and picked up his City work vehicle. Then, he began driving to the fire station that lacked heat. On the way, he collided with Arellano. Arellano filed suit against the City for personal injury. The City filed a motion for summary judgment which was denied. The City appealed.

When an employee is driving a vehicle owned by the employer, the employee is under a presumption to be acting within the course and scope of their employment. When it is unrelated, the presumption prevails. The court first held the City failed to adequately refute the presumption. So, Dang was legally acting within the course and scope of his employment. The court next analyzed whether Dang was responding to an “emergency”. After analyzing the facts in the record, the court determined a fact issue existed. As a result, it was proper to deny the motion.

If you would like to read this opinion click here

El Paso Court of Appeals holds automatic gate was not unreasonably dangerous simply because it could close automatically

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City of El Paso v. Maria Pina, No. 08-20-00159-CV (Tex. App. — El Paso, Aug. 8, 2022)

This is a premise defect case under the Texas Tort Claims Act where the El Paso Court of Appeals held an automatic gate is not unreasonably dangerous simply because it can close automatically.

Pina was involved in a motor vehicle accident with an automatic gate on city property. The entrance gate at the El Paso Police Academy closed on Pina’ car as she was driving onto the premises to attend a class. Pina claims that as she approached the gate, cars were freely entering and exiting, and the gate was not closing between vehicles. Thus, she was not aware the gate could close automatically while a car was going through it. As her vehicle was traveling through the gate, it began closing and struck her car. The collision damaged her vehicle and caused her to sustain bodily injury, according to the allegations in her petition. The City filed a plea to the jurisdiction asserting it had no actual knowledge of a dangerous condition prior to the incident and that no dangerous condition existed.

The court held that an automatic gate, simply because it opens and closes automatically on its own, is not an unreasonably dangerous condition. The key is whether it poses an unreasonable danger by virtue of its mere existence, which it does not. No evidence was submitted to indicate it was malfunctioning or posed any danger different from the normal conditions under which it operates. The court emphasized the “unreasonably” language as a requirement. A condition is not unreasonably dangerous simply because it is not foolproof. A premises owner is not an insurer of invitees to its premises. Further, no evidence existed that the City had actual knowledge the gate posed an unreasonably dangerous condition. Simply because the City knew the gate closed automatically is not actual knowledge of a dangerous condition. As a result, the plea should have been granted. The order was reversed and judgment rendered for the City.

If you would like to read this opinion click here.

Amarillo Court of Appeals holds AG had no jurisdiction to enforce specific gun sign against county

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Waller County, Texas, et al. v. Ken Paxton, Texas Attorney General (Tex. App. — Amarillo, August 17, 2022)

Ken Paxton, Attorney General of Texas, sued Waller County in 2016 asserting that the County was unlawfully attempting to prohibit licensed handgun owners carrying handguns from accessing portions of the county courthouse building in violation of section 411.209 of the Texas Government Code. Attorney General’s suit challenges the legality of signs posted at all four entrances to the Waller County Courthouse. Integral to their argument is the requirement the County violated the sign requirements of Penal Code sec. 30.06. The County filed a motion to dismiss for lack of jurisdiction. The trial court denied the motion and the County appealed.

A motion to dismiss based on a lack of subject matter jurisdiction is the functional equivalent of a plea to the jurisdiction. The Attorney General contends that the County’s immunity was waived under section 411.209(h) of the Texas Government Code states “[s]overeign immunity to suit is waived and abolished to the extent of liability created by this section.” TEX. GOV’T CODE ANN. § 411.209(h). However, when immunity is waived a plaintiff must “actually allege” a violation of the statute. Thus, the Attorney General had to plead facts sufficient to support his claim that the County violated the statute. The court’s inquiry is therefore on whether, at the inception of the suit, the Attorney General alleged facts that stated a cause of action under the statute in effect at the time. The court determined the County’s signs do not fall within the parameters of the statute in effect at the time this lawsuit was filed in 2016. For the purposes of this jurisdictional inquiry, the court need not reach the issue of whether the County’s signs or oral communications violate the current version of the statute. Therefore the plea should have been granted.

If you would like to read this opinion click here.

Texas Fourth Court of Appeals holds that merely investigating an injury does not constitute actual notice of claim

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Fanny Bellorin, Individually and on Behalf of and as Next of Friend of Derlin Hernandez v. City of San Antonio, No. 04-22-00003-CV, (Tex.App.—San Antonio July 13, 2022) (mem. op.)

This case stems from an appeal of the City of San Antonio’s (“COSA”) denied plea to the jurisdiction based upon lack of written or actual notice as required under the Texas Tort Claims Act (“TTCA”). The Fourth Court of Appeals reversed the denial and dismissed appellee’s claim.

Derlin Hernandez (“Hernandez”) was employed as a contractor/agent for COSA as part of a road maintenance crew. On September 29, 2020, Hernandez was injured when a vehicle, operated by a private individual, collided into a backhoe in which Hernandez was a passenger. Hernandez was ejected and run over by either the backhoe, the vehicle, or the trailer being towed by the vehicle. COSA personnel, including police, fire, and EMS, arrived to assess the situation, ultimately determining that the operation of the vehicle contributed to the collision. On June 23, 2021 (267 days after the incident), Hernandez’s counsel sent a notice of claim to COSA under Section 101.101 of the TTCA. The notice further alleged that COSA had actual notice of Hernandez’s injuries, then proceeded to join COSA in the pending suit. COSA filed a plea to the jurisdiction arguing no waiver of immunity due to no written or actual notice under the TTCA. The trial court denied the plea; this appeal followed.

The appellate court applied the facts of the case to the two means of providing notice under the TTCA. First, the appellate court acknowledged that the 267-day gap went well beyond the 180-day requirement under the TTCA as well as COSA’s own charter notice requirement deadline of 90 days after the occurrence of the incident. Second, the appellate court found no actual notice of the claim, which generally requires that the entity be subjectively aware that it may be responsible for the claimed injury. Here, COSA merely arrived on scene after the incident and the report produced as a result of the investigation did not even imply, let alone expressly state, that COSA was at fault. The court ultimately emphasized a Texas Supreme Court’s opinion, holding “knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes”

Due to the fact that the TTCA notice requirement is a jurisdictional prerequisite, the appellate court reversed the trial court’s denial of COSA’s plea to the jurisdiction, dismissing appellee’s claims against the City.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Rios and Valenzuela. Memorandum opinion by Justice Valenzuela.

Employee not entitled to official immunity as asserted in summary judgement

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University of the Incarnate Word v. Valerie Redus, et al., No.04-21-00115-CV, (Tex.App.—San Antonio, July 29, 2022)

This appeal stems from a deadly force claim allegedly committed by a University of the Incarnate Word (“UIW”) police officer. UIW appealed a denial of its motion for summary judgment. The Fourth Court of Appeals affirmed the denial.

Student Cameron Redus (“Redus”) was stopped by UIW Cpl. Christopher Carter (“Carter”) for suspicion of driving while intoxicated. A physical altercation ensued after Carter attempted to arrest Redus, which ultimately resulted in Carter shooting Redus five times, killing him. Redus’ parents brought forth a wrongful death and survival action against UIW and Carter, alleging negligence and gross negligence. UIW filed a traditional motion for summary judgment based on Carter’s qualified immunity and, derivatively, UIW’s immunity from suit. The trial court denied the motion and UIW filed this appeal.

To establish official immunity, the state equivalent of what is commonly known as “qualified immunity,” the defendant must conclusively establish that the employee was 1) performing a discretionary duty, 2) within the scope of the employee’s authority, and 3) the performance of that duty was done in good faith. The only element in dispute was whether Carter was acting in good faith. The crux of the appellate court’s analysis rests upon a previous holding by this court (Saenz v. Gonzalez in 2002) that, where underlying facts are in dispute, the court cannot consider a defendant expert’s affidavit establishes good faith because the disputed fact issue precludes summary judgment. Here, UIW was relying on sworn testimony and affidavits which state that Redus was not only the aggressor, but that he had taken Carter’s baton and was using it to assault Carter. However, appellee’s testimony, affidavits, and even the audio during the incident called into question whether Redus was the initial aggressor or had even gained possession of Carter’s baton. Because the underlying fact of whether Redus was the aggressor underlay UIW’s argument that Carter was acting in good faith, the appellate court found that the evidence created a material fact issue precluding the grant of immunity at this stage. The appellate court also made an effort to note that UIW further failed to make any argument for official immunity based on the assumption that appellee’s version of the facts was taken as true. As such, the appellate court affirmed the trial court’s denial of UIW’s motion for summary judgment.

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

Working in a concession stand at a recreational event is not “recreation” that would be covered by the recreational use statute.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Cleveland v. Macie Martin LaFrance and Penny Martin, 09-20-00189-CV, (Tex. App – Beaumont, June 9, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s plea to the jurisdiction and no evidence summary judgment, the city appealed that governmental immunity has not been waived because it either did not control the area where the injury occurred or that it did not have knowledge of the defect which caused the injury. The Ninth Court of Appeals affirmed the trial court’s judgment because there was no evidence presented by the City that negated the issues of control or knowledge of defect presented by the plaintiff.

The plaintiff sued the city after the plaintiff was electrocuted by an outlet in a concession stand during the city’s livestock show. The plaintiff sued due to an electrical defect in the outlet that caused the injury and argued that the city had knowledge of the defect and that the defect caused an unreasonable risk of harm. The city filed a plea to the jurisdiction and a no evidence motion for summary judgment arguing that: (1) the plaintiff was contributorily negligent; (2) that it did not have control of the concession stand; (3) that the recreational use statute applied; and (4) it had no knowledge of the defect. The trial court denied the city’s plea to the jurisdiction and no evidence summary judgment, and the city appealed.

Immunity is waived if a governmental entity causes personal injury or property damage with the use of tangible personal property or through premises defect on the property of the governmental entity.  Tex. Civ. Prac. & Rem. Code § 101.021.  The Texas Recreational Use Statute limits an entity’s liability as a premises owner if the plaintiff engaged in recreation on the premises at the time of the injury. Tex. Civ. Prac. & Rem. Code §§ 75.001-.007. To waive governmental immunity for a premises defect, if the recreational use statute does not apply, the plaintiff has to show that: “(1) a condition of the premises created an unreasonable risk of harm to the plaintiff; (2) the governmental unit actually knew of the condition; (3) the plaintiff did not actually know of the condition; (4) the governmental unit failed to exercise ordinary care to protect the plaintiff from danger; and (5) the governmental unit’s failure was a proximate cause of the injury to the plaintiff.” If the recreational use statute applies, the entity owes the user only the duty to not injure the user willfully, wantonly, or through gross negligence. However, the recreational use statute did not apply in this case because working in a concession stand, even if the concession stand is associated with a recreational activity, is not “recreation” under the definition in the recreational use statute. To prevail on a plea to the jurisdiction, the entity must show as a matter of law that it did not owe a duty of care as a matter of law. Tirado v. City of El Paso, 361 S.W.3d 191, 196 (Tex. App. —El Paso 2012, no pet.).  To negate jurisdictional facts presented by a plaintiff, the entity has to present evidence that negates an essential jurisdictional fact. In this case, the Court of Appeals held that the entity did not adequately prove that it did not owe a duty of care, that it was not in control of the concession stand at the time of injury or that it did not know about the defect, and thus the court upheld the trial court’s denial of the plea to the jurisdiction and no evidence summary judgment.

The court of appeals affirmed the trial court’s judgment because the entity did not provide evidence negating the jurisdictional facts pled by the plaintiff.

If you would like to read this opinion click here.   Panel consists of Justices Kreger, Horton, and Johnson.  Memorandum opinion by Justice Johnson.

 

Misuse of information in the operation of cemetery does not waive governmental immunity because operation of a cemetery is a governmental function.  

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Raymondville v. Isabel Elizondo, Noe Espinoza Jr., Roxanne Franco, and Antonio Espinoza, 13-21-00375-CV, (Tex. App – Corpus Christi – Edinburg, May 26, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s plea to the jurisdiction, the city appealed that governmental immunity has not been waived because the misuse of information is insufficient to waive immunity under the Tort Claims Act and because the operation of a cemetery is a governmental function. The Thirteenth Court of Appeals reversed the trial court’s judgment because there was no waiver of governmental immunity for the misuse of information.

The plaintiff sued the city after the plaintiff’s relative was buried in the wrong burial plot and had to be moved.  The plaintiff did not agree to the move but was not informed prior to the move taking place.  Plaintiff sued the city, and the church that performed the burial, for negligence, intentional infliction of emotional distress (IIED), breach of fiduciary duty, and violations of the Texas Deceptive Trade Practices Act (DTPA), as well as premises defect.  The city filed a plea to the jurisdiction arguing that: (1) the use of tangible personal property was by independent contractors, the church; (2) the claim was for the misuse of information; and (3) misuse of information does not waive governmental immunity under the Texas Tort Claims Act.   The trial court denied the city’s plea to the jurisdiction and the city appealed.

Immunity is waived if a governmental entity causes personal injury or property damage with the use of tangible personal property or through premises defect on the property of the governmental entity.  Tex. Civ. Prac. & Rem. Code § 101.021.  “Use or misuse of information does not amount to use or misuse of tangible property so as to waive governmental immunity under [§] 101.021(2).”  City of Hidalgo Ambulance Serv. v. Lira, 17 S.W.3d 300, 304 (Tex. App.-Corpus Christi-Edinburg 2000, no pet.).  To determine whether a claim is one for misuse of information the court looks at the basis of the claim.  In this case, the Court of Appeals held that the claim for damages for burying their deceased relative in the wrong plot and then moving the individual was one for the misuse of information of where the burial plot was located and therefore the City’s immunity was not waived.

The court of appeals reversed the trial court’s judgment and dismissed the claim because the plaintiff’s claim was for misuse of information by the City and therefore immunity was not waived under the Texas Tort Claims.

If you would like to read this opinion click here.   Panel consists of Justices Longoria, Hinojosa,  and Silva.  Memorandum opinion by Justice Silva.

 

San Antonio Court of Appeals holds home-rule City can change elections from November to May

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City of Floresville, et al v. Nick Nissen, et al., 04-21-00042-CV (Tex. App. – San Antonio, June 29, 2022)

In this case the Fourth Court of Appeals held that a home-rule city could change its official election date to either of the two uniform election days in Texas.

The City of Floresville’s home-rule charter states elections for positions would be held in each spring election under the Texas Election Code. In 2011, the City changed it elections to November pursuant to section 41.0052(c) of the Texas Election Code.  This statute allowed the change and expressly allowed the superseding of the charter provisions. On July 17, 2019, the city council passed Resolution No. 2019-014, which repealed the change, and transferred the elections back to the May election. Citizens sued the City, the council members, and the City’s secretary in their official capacities (collectively “the City”), seeking a declaratory judgment the 2019 change violated the Election Code. This case already went up and down to the court of appeals regarding the trial court’s injunction orders. After remand, the trial court granted the citizen’s summary judgment motion, in part, and declared the 2019 resolution changing the dates back to May void as a matter of law. The City appealed.

Since the City is home-rule, it does not need authority from the Legislature to act, and must only look for restrictions. The Texas Supreme Court has explained that in limiting the power of home-rule cities, the Legislature’s intent must “appear with unmistakable clarity.” Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 645 (Tex. 1975).   While the statute does limit the City’s ability to change the date from May to November if done after December 31, 2016, it does not restrict the City’s ability to change it from November to May.

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

Texas Supreme Court holds demoted officers failed to submit proper Whistleblower report

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City of Fort Worth v Abdul Pridgen and Vance Keyes, No. 20-0700 (Tex. May 27, 2022)

In this Whistleblower lawsuit, the Texas Supreme Court held the city employees did not make a qualifying “report” to trigger protection. 

The two employees (Pridgen and Keyes) were veteran law enforcement officers employed by the Fort Worth Police Department. Pridgen served as Assistant Chief, Keyes as Deputy Chief. Both supervised the Department’s Internal Affairs and Special Investigations Units. Keyes reported directly to Pridgen, who in turn reported to Chief of Police Joel Fitzgerald. Officer Martin was dispatched to a call that an individual choked a young daughter. The mother (Craig) asserted Martin arrested her and her daughter because they “pissed him off” and violated their rights as they were the victims. Portions of the incident were recorded and went viral on social media. Internal Affairs conducted pre-disciplinary hearings and investigation. Pridgen and Keyes reviewed the evidence and determined Martin violated the law and should be terminated.  Both Pridgen and Keyes assert that they conveyed these conclusions to Chief Fitzgerald on multiple occasions prior to Martin’s receiving discipline.  Though Chief Fitzgerald agreed that Martin used excessive force, he and several other members of the Internal Affairs Unit disagreed with Pridgen and Keyes about their other conclusions and did not think Martin should be terminated. Afterwards, part of Martin’s body cam video was leaked online. An internal investigation pointed to Pridgen and Keyes as the potential leak.  Both were demoted and Keyes was suspended for three days. Both sued the City asserting Whistleblower protection. The City filed motions for summary judgment which were denied by the trial court and affirmed by the court of appeals. The City appealed. 

The Court held to constitute a “report[” under the Act, an employee must convey information, not just conclusions. Information requires specific facts as opposed to mere opinions or suppositions. Communicating unsupported opinions or legal conclusions is insufficient.  All Pridgen and Keyes provided were opinions of whether Martin violated any policies or law and their opinions as to the appropriate penalty. The Act is not intended to protect all reports; it is intended to protect those that further this purpose of curbing mismanagement in the public sector. The Court rejected the City’s additional arguments that reports must disclose new information not already known and should not be protected if employees report regularly as part of their jobs.   However, the Court held Respondents’ communications with Chief Fitzgerald consisted principally of recommendations about the appropriate legal conclusions to be drawn from Martin’s actions. They are opinions and conclusions, which are not protected. As a result, no jurisdiction exists for their claims. 

If you would like to read this opinion click here. JUSTICE LEHRMANN delivered the opinion of the Court, in which Chief Justice Hecht, Justice Devine, Justice Busby, Justice Bland, Justice Huddle, and Justice Young joined, and in which Justice Blacklock joined except as to Part III(A).JUSTICE BLACKLOCK filed a concurring opinion. JUSTICE BOYD filed a dissenting opinion.

P&Z members immune from ultra vires actions from third parties in plat approval/denial proceedings

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Josh Schroeder, et al. V Escalera Ranch Owners’ Association, Inc., No. 20-0855 (Tex. June 3, 2022)

In this case, the Texas Supreme Court held individuals on the planning and zoning commission were entitled to immunity from ultra vires claims brought by third parties challenging a plat approval. 

Escalera Ranch is a subdivision within the City of Georgetown’s extraterritorial jurisdiction. A developer applied for a preliminary plat. The subdivision’s home owners association (Association)  opposed the application. They asserted that the plat did not conform to the City’s Unified Development Code (UDC) or adopted fire code. They claimed that under the UDC, streets like Escalera Parkway are expected to carry no more than 800 vehicles per day and serve a maximum of 80 dwelling units.  After analysis, Commission staff reported that “[t]he proposed Preliminary Plat meets all of the requirements of the [UDC]…” and the fire marshal asserted it would meet the fire code. The Commission approved the plat, asserting it had a ministerial duty to approve the plat. The Association sued for mandamus asserting the act was ultra vires and to resend the plat. The Commission filed a plea to the jurisdiction which was granted at the trial court. The court of appeals reversed asserting a fact question existed and the Commission individuals appealed. 

“[P]lat approval is a discretionary function that only a governmental unit can perform.” But once the relevant governmental unit determines that a plat conforms to applicable regulations, it has a ministerial duty to approve that plat. The Commission made such a determination in this case.  Mandamus seeking to compel action by a public official “falls within the ultra vires rationale.”  The Local Government Code does not create a ministerial duty to deny a nonconforming plat. To the contrary, recordable plats that are not acted upon within 30 days must be approved, even without a determination of conformity. The Commission exercises discretion in determining ordinance conformity. So, the Court analyzed the assertion under an abuse of discretion standard.  The Commission’s conformity determination is a discretionary one that necessarily involves “interpret[ing] and constru[ing] . . . applicable ordinances”. While the UDC limits the discretion of what the Commission may consider, it does not otherwise restrict the Commission’s exercise of its discretion to determine conformity.  The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one. If a municipal planning and zoning commission wants to deny a plat for nonconformance, it has only thirty days to do so. After that, the plat is generally approved—even if nonconforming.  The Legislature has not created a mechanism for third parties to seek judicial review of a municipality’s platting approval.  As a result, the individual members are immune from any ultra vires claim brought by the Association. 

If you would like to read this opinion click here. Opinion by Justice Heck.