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. 

Texas Supreme Court holds city’s civil-enforcement of utility payment ordinance was not an unconstitutional taking

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City of Baytown v Alan Schrock, 20-0309 (Tex. May 13, 2022) 

In this takings case, the Texas Supreme Court held the City of Bayton (City) did not commit a taking by withholding utility service in order to collect unpaid utility bills.  

Schrock owned property that he would lease to tenants. The City’s ordinances required landlords to either guarantee payment for utility bills or to file a declaration with the City stating that the landlord would not guarantee its tenant’s utility payments. The City also had an ordinance prohibiting the connection of new utility services at properties encumbered by outstanding utility bills. At some point, utility bills for the City’s water service to the property went unpaid and Schrock did not file any declaration. Schrock contested unpaid amounts (pointing to his tenant as the responsible party) but the City, after a hearing, placed a lien on the property. The City then refused to connect utilities to the property when one of Schrock’s tenants requested it, which caused the tenant to cancel the lease. Because no utilities were connected, no tenants rented, the property fell into disrepair. Schrock sued the City for inverse condemnation and other claims, primarily alleging that the City’s refusal to reconnect his utility service violated Tex Loc. Gov’t Code § 552.0025 (which prohibits municipalities from conditioning utility service connections on payment of outstanding utility bills incurred by other customers residing at the same address.). The trial court ruled for the City, but the court of appeals reversed, noting a fact question existed. The City appealed.  

 A regulatory takings claim is one in which “the plaintiff complains that the government through regulation so burdened his property as to deny him its economic value or unreasonably interfere with its use and enjoyment.” The Court made a distinction between a regulation that directly regulates land use and one which merely impairs the use of the property because of its enforcement. The Court held that the City’s providing utilities to the property was a service; its regulation of that service was not a regulation of the property itself. The true nature of Schrock’s claim lies in the City’s wrongful enforcement of its ordinance, not in an intentional taking or damage of his property for public use. The Court noted that nearly every civil-enforcement action results in a property loss of some kind. Property damage due to civil enforcement of an ordinance unrelated to land use, standing on its own, is not enough to sustain regulatory takings claims. 

If you would like to read this opinion click here. Justice Bland delivered the opinion. Justice Young delivered a concurring opinion, in which Justice Lehrmann, Justice Blacklock, and Justice Busby joined. 

Texas Supreme Court holds general-law cities cannot impose a revenue-based licensing fee for construction trash haulers

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Builder Recovery Services, LLC v. The Town of Westlake, Texas, 21-0173, (Tex, May 20, 2022) 

In this case, the Texas Supreme Court held that general law cities have limited authority to impose license fees for solid waste collections.  

The Town of Westlake is a general-law municipality that imposed a percentage-of-revenue license fee on companies like Builder Recovery Services, LLC (BRS) which hauls trash away from construction sites.  The Town has a percentage agreement with Republic Services, which performs regular residential and commercial trash collection for the Town, but which also included construction site hauls. The Greater Fort Worth Builders Association sent the Town a letter questioning the Town’s legal authority to make Republic the exclusive provider of construction trash-hauling services. BRS and the Town’s staff attempted to agree on terms for a license, but no agreement was reached. BRS began operating in the Town without a license. When the Town cited BRS for operating without a license, it brought suit. The Town amended the fee amount during the suit. The trial court ruled the original fee was invalid and rejected the remainder of the BRS claims.  Both sides appealed. The court of appeals affirmed in part and reversed in part, by affirming the judgment favoring the Town but holding the BRS claim regarding the original fee was moot. BRS appealed.  

General-law cities, like the Town of Westlake, possess only those powers and privileges that the State expressly confers upon them.  A claim that a percentage-of-revenue fee of any size is unlawful is not mooted by an intervening adjustment to the size of the fee.  The court made a distinction between a licensing fee and a franchise fee. The Town’s relationship with Republic is governed by an exclusive franchise agreement as described in section 364.034 of the Health and Safety Code. The Court assumed the Town had the authority to require a license, then focused its analysis on the types of licensing fees allowed. A licensing fee is meant to recoup administrative costs of the licensing system. The Town does not regulate the price of trash hauling in this instance. How much BRS charges its customers to haul their trash “is none of the Town’s concern, and this privately negotiated, fluctuating amount has nothing to do with how much money the Town needs to administer its trash-hauling regulations.”  The Court held it was unlikely that the Legislature’s grant to general-law cities the generic authority to regulate trash hauling was intended to include an implied power for a revenue-based charge of this nature.  While a licensing fee properly tied to administrative costs is allowed, it cannot be revenue-based. Next, the Court held that while the fee and remainder of the regulations appear to be a packaged deal, the ordinance has a severability clause. But what remains was not argued, so the Court remanded the case. 

 Panel consists of Chief Justice Hecht, and Justices Lehrmann, Boyd, Devine, Blacklock, Busny, Bland, Huddle, and Young. Court of Appeals’ judgment reversed; Remanded to Court of Appeals. Opinion by Justice Blacklock can be read here. Docket page with attorney information found here. 

First District Court of Appeals holds property owner could not bring a takings claim based on judicial order regarding substandard building

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Jaime Jaramillo v. The City of Texas City, 01-20-00654-CV, (Tex. App.—Houston [1st Dist.], Feb. 8, 2022, no pet. h.) (mem. op.).

This is a takings case brought after the City initiated an enforcement action for a dilapidated building. The First District Court of Appeals affirmed the dismissal of the property owner’s claims.

Jaramillo entered into an Agreed Order of Abatement with the City where the City would be able to abate and demolish the structures on the real property belonging to Jaramillo any time after a certain date if he did not comply with the ordinances and the International Property Maintenance Code. After reviewing the Agreed Order with the prosecutor and signing it, Jaramillo filed suit two weeks later claiming a taking of his property, denial of procedural due process, fraud, and civil conspiracy. The City filed a motion to dismiss for want of jurisdiction due to entering an unappealable order and sovereign immunity. The trial court granted the motion. Jaramillo appealed.

The court found that there was no waiver of immunity asserted as immunity cannot be waived for an intentional tort.  It further found civil conspiracy is a derivative tort; therefore, it cannot stand alone. Under his due process claim, Jaramillo agreed in the order that the building was substandard.  A court, not an administrative body, entered the order based on the agreement. As a result, no procedural due process was violated.  Jaramillo failed to preserve any errors before accepting and signing the Agreed Order. The Order was affirmed.

Panel consists of Chief Justice Radack, and Justices Rivas-Molloy and Guerra. Memorandum Opinion by Justice Rivas-Molloy can be read here. Docket page with attorney information found here.

U.S. Supreme Court holds Austin on-premise/off-premise sign regulation is content neutral

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Austin, Texas v. Reagan Nat’l Advert. Of Austin, LLC., et al, No. 20-1029 (April 21, 2022).

The primary question in regulating off-premise signs differently than on-premise signs is whether such a regulation implicates the First Amendment in a way that requires strict scrutiny or instead allows intermediate scrutiny.  The Supreme Court of the United States held an Austin city regulation treating on-premise and off-premise signs differently is not content-based and so can be reviewed under intermediate scrutiny.

An outdoor advertiser, Reagan, attempted to obtain permits from the City of Austin to transition its off-premise signs, otherwise known as billboards, to electronic billboards.  The applications were denied by the City because the signs were off-premise signs which are not allowed to be transitioned to electronic signs although the same restriction did not apply equally to on-premise signs.  The City’s definition of “off-premise sign” at the applicable period included:

“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.”

Austin, Tex., City Code §25–10–3(11) (2016).  After the denial, Reagan sued the City under the United States Constitution based on the Free Speech Clause of the First Amendment as interpreted by Reed v. Town of Gilbert, arguing that the distinction between on-premise and off-premise signs was a content-based regulation that required a strict scrutiny analysis. 576 U. S. 155 (2015). The district court held that the regulation differentiating between on- and off-premise signs were content-neutral and valid under intermediate scrutiny. In Reagan’s appeal, the Court of Appeals for the Fifth Circuit held that the distinction was content-based and that it required strict scrutiny because the distinction affected both non-commercial and commercial speech and it required the City to read the sign to regulate it. The City appealed to the Supreme Court of the United States and it granted certiorari.

Under Reed, a land-use regulation requires review under strict scrutiny, a standard almost impossible to meet to validate the regulation, if it is content-based in how it regulates speech or “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 576 U.S. at 163.  If it is content-neutral it must meet intermediate scrutiny which means the regulation is “narrowly tailored to serve a significant governmental interest.”  Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989).  The Court in this case held that even though the regulation required that the sign be read to determine how to regulate it, the regulation did not “single out any topic or subject matter for differential treatment.”  Reagan at 8.  Instead, the regulation was focused on the location of the sign.  The Court stated that its ruling is consistent with the Reed case and:

It is the dissent that would upend settled understandings of the law. Where we adhere to the teachings of history, experience, and precedent, the dissent would hold that tens of thousands of jurisdictions have presumptively violated the First Amendment, some for more than half a century, and that they have done so by use of an on-/off-premises distinction this Court has repeatedly reviewed and never previously questioned. For the reasons we have explained, the Constitution does not require that bizarre result.

Reagan at 13.

The Court reversed the court of appeals opinion and remanded the question of whether the regulation meets the lower standard of intermediate scrutiny to the court of appeals for review. The Court also did not issue a holding related to whether a city can treat commercial speech differently to non-commercial speech.  Reagan at fn.3.   However, it did reference cases that provided for such commercial versus non-commercial distinctions favorably.  Reagan at 9-10.  See Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (1978); Metromedia, Inc. v. San Diego, 453 U. S. 490, 503–512 (1981) (plurality opinion); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980).  Practically, this is a minor change to the Reed analysis that only applies to on-and-off-premise signs, but could have implications for other sign regulations that are broad and do not target a specific communicative content.  This case does not approve or disapprove a distinction between commercial and non-commercial content.

Sotomayer, J., delivered the opinion of the Court, in which Roberts, C.J., and Breyer, Kagan, and Kavanaugh, JJ., joined.  Breyer, J. and Alito, J. concurring.  Thomas, J. filed a dissenting opinion, in which Gorsuch and Barrett, JJ., joined.

Breyer Concurrence:  Does not agree with Reed, but agrees that this opinion is consistent with Reed.  “But the First Amendment is not the Tax Code. Its purposes are often better served when judge-made categories (like “content discrimination”) are treated, not as bright-line rules, but instead as rules of thumb.”

Alito concurring and dissenting.  Does not agree that on-/off-premise distinction is content neutral, but instead the court of appeals should look at the billboards in question on a case-by-case basis to see if the City’s ordinance is unconstitutional.

Thomas Dissent:  The bright-line rule of Reed is that if the sign has to be read to be regulated then it is a content-based restriction.  No communicative content can be a basis for regulation.

If you would like to read this opinion click here.

Texas Supreme Court holds the law requires more than conclusory references to the statute’s elements in order to waive immunity

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Patrick Von Dohlen, et. al., v City of San Antonio, 20-0725 (Tex. April 1, 2022)

This is a declaratory judgment – statutory cause of action case brought against the City of San Antonio (“City”) for violating Chapter 2400 of the Texas Government Code. The Texas Supreme Court held the Plaintiffs failed to allege a proper waiver under the statute but remanded for an ability to cure the defect.

The city council for the City of San Antonio declined to allow Chick-fil-A to operate a concession area within the City’s airport. The Plaintiffs alleged the action was taken due to councilmember comments opposing the religious views of the company. Specifically, the company has a legacy of anti-LGBTQ behavior. Later, the Legislature passed TEX. GOV’T CODE § 2400.002, which prohibits a city from taking “any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.”  Four years later, the Plaintiffs sued the City and asserted it was in violation of this statutory provision. The City challenged jurisdiction asserting the law is not retroactive, and lack of standing due to no distinct injury from the general public. The trial court denied the plea, but the court of appeals reversed and dismissed the claims. Plaintiffs appealed.

When a statute waives immunity, a plaintiff must still plead an actual violation and mere references to the statute are insufficient. Chapter 2400 explicitly waives sovereign and governmental immunity when a person “alleges” a violation of Section 2400.002.  However, the petition’s alleged facts all occurred prior to the enactment of Chapter 2400 and nothing afterward. While the Plaintiffs allege the City’s violation is continuing in nature, they do not allege any facts to support this. Here, Plaintiffs do not plead sufficient facts to “actually allege a violation” of Chapter 2400 because they fail to point to any specific “action” the City took on or after Chapter 2400 was effective. However, this does not mean the City has negated the ability to plead such a claim. Texas law does not favor striking defective pleadings without providing plaintiffs an opportunity to replead.  As a result, the case is remanded to allow the ability to replead.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, Justice Bland, and Justice Young joined. JUSTICE BLACKLOCK filed an opinion concurring in the judgment, in which Justice Devine joined and is found here

US 5th Circuit held officer entitled to qualified immunity due to suspects resisting placement in vehicle

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Craig, et al. v. Martin, 19-10013, (5th Cir. Feb. 15, 2022)

Special guest author: Joshua Galicia, Law Offices of Ryan Henry, PLLC

This Fifth Circuit appeal stems from a series of §1983 claims, all of which were dismissed under the appellant’s motion for summary judgment except the officer’s assertion of qualified immunity for the excessive force claims. The Fifth Circuit reversed the trial court’s denial, determined the officer was entitled to qualified immunity and dismissed the claims.

Officer William Martin (“Martin”) received a call about a “disturbance” involving A.C., Jacqueline Craig’s (“Craig”) minor child. Martin responded alone. On scene, Martin activated his bodycam and began a conversation with Craig, which escalated in hostility until Craig was yelling at Martin. Craig’s adult child Brea Hymond (“Hymond”) was recording the event on her cell phone.  Craig’s minor children are J.H. and K.H. J.H. stepped in between Craig and Martin, to which Martin grabbed J.H. and pulled her out from between them. K.H. then shoved Martin from behind. Martin proceeded to tase Craig to the ground and then handcuffed her. Martin then restrained J.H. and proceeded to walk Craig and J.H. to his vehicle. K.H. stood in front of the passenger door, in an apparent attempt to prevent Craig and J.H. from being placed within. Martin ordered K.H. to move and, upon refusing to do so, struck K.H., after which she moved out of the way. J.H. then further resisted being placed in the vehicle by keeping her leg out until Martin kicked her leg once, after which she placed her leg inside the vehicle.  Finally, Martin placed Hymond under arrest, who had been verbally harassing Martin throughout the previous events. Hymond refused to identify herself, so Martin raised her handcuffed arms behind her back to gain compliance.  Craig, individually and on behalf of her minor children, K.H. and J.H., and Hymond sued Martin for unlawful arrest and excessive use of force. The trial court dismissed most of the claims, but denied Martin’s qualified immunity defense. Martin appealed.

The Fifth Circuit divided its analysis into two parts: whether the officer’s actions were excessive and, if they were, whether the actions “violated clearly established statutory or constitutional rights of which a reasonable [officer] would have known.” For the first part, the Fifth Circuit found that the officer’s actions were reasonable given the nature of the actions taken against Martin by each party, particularly that he was by himself for the majority of these interactions while each individual was performing said actions and that there was video evidence, which contradicted some of the appellees’ allegations in their pleadings. For the second part, even if the officer’s actions had been found to be excessive, the precedent cited by appellees was noted as failing to find caselaw which showed individuals who were actively resisting officers as was present in this case to the point that Martin should have known he was violating clearly established rights. The court reversed the trial court order, held Martin was entitled to qualified immunity, and dismissed the remaining claims.

If you would like to read this opinion click here. The panel consists of Chief Circuit Judge Owen and Circuit Judges Barksdale and Duncan. Opinion by Chief Circuit Judge Owen.

Fifth Circuit holds that there is no per se rule permitting pressure placed on a resisting suspect’s back and that reasonableness of use of force can change in a single interaction

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Vicki Timpa, et al. v. Dustin Dillard, et al., 20-10876, 2021 WL 5915553 (5th Cir. Dec. 15, 2021)

Special guest author Joshua Galicia

This is a §1983 excessive force and bystander liability case appealed from the District Court of the Northern District of Texas wherein the district court granted appellees’ motion for summary judgment, dismissing both claims on the grounds that the appellees had qualified immunity. The Fifth Circuit court partly reverse-in-part and affirmed-in-part

In Dallas, Texas, Anthony Timpa called 911 requesting assistance due to a possible mental health episode and stating he had ingested cocaine. A dispatcher requested DPD officers respond to the call and that the individual may be experiencing mental health issues. For mental health calls, DPD general instructs that “as soon as [a person is] brought under control, they are placed in an upright position (if possible) or on their side.” Additional instructions were provided for individuals suffering from a state of agitation normally brought about by drug use, including cocaine. In this case, Officers Dillard, Dominguez, Vasquez, and supervising officers Rivera and Mansell arrived after Timpa had been cuffed by private security guards. Timpa began to roll towards a roadway, so Officer Dillard placed his knee on Anthony’s back, keeping it there for approximately fourteen minutes. Around nine minutes in, Timpa ceased kicking, but continued moving his head back and forth then, for the final three-and-a-half minutes, Anthony became limp and unresponsive. After Dillard removed his knee and paramedics placed Timpa on a gurney, they determined that Timpa was dead. The Dallas County medical examiner conducted an autopsy and determined that Timpa had been suffering from “excited delirium syndrome” and had died from sudden cardiac arrest brought upon by the presence of cocaine in his system as well as stress associated with physical restraint. At trial, Plaintiffs’ medical expert testified that Timpa would have lived had he been restrained without force being applied to his back. Timpa’s family brought suit against Officer Dillard for excessive force and unlawful deadly force and the other four officers for bystander liability. On summary judgment, the district court granted the defendants qualified immunity for both the excessive force and bystander liability claims. The plaintiffs appealed.

The Fifth Circuit court found that Dillard’s arguments for entitlement to qualified immunity mischaracterized precedential case law regarding excessive force. Specifically, Dillard articulated a per se rule by the Fifth Circuit that ‘[the use of a] prone restraint [on] a resisting suspect does not violate the Fourth Amendment even when pressure is applied to the suspect’s back.’ In fact, the United States Supreme Court has specifically rejected any such rule. Further, the Fifth Circuit indicated that excessive/deadly force claims are not analyzed via a generalized view of the incident, but rather via a fact-intensive review of key points throughout, as changing circumstances could require an adjustment of what is considered reasonable force. Additionally, the Fifth Circuit court kept in mind that Dillard had received training specifically on interacting with suspects suffering a mental health episode and those under the influence of certain drugs, like cocaine. In this case, the court considered that Timpa himself called 911 seeking help, that he was already cuffed when Dillard arrived, that Dillard was aware that Timpa was obese (which naturally makes breathing harder when in the prone position), that Dillard was aware Timpa had stated he’d ingested cocaine (which exacerbates any breathing difficulties), that Timpa’s head movements (which Dillard argued was continued resistance) were actually signs that Timpa was attempting to breathe, and that Timpa had gone limp several minutes before Dillard removed his knee from Timpa’s back. Ultimately, the court found that there were genuine material fact issues as to excessive force as well as the use of deadly force.

As to bystander liability, the Fifth Circuit Court found that genuine issues of material fact existed for three of the four officers. Specifically, the court found that there were questions of fact whether the three officers knew Dillard was violating Timpa’s constitutional rights, whether they had reasonable opportunity to prevent Dillard from continuing to place his knee on Timpa’s back, and whether they chose not to act accordingly. The fourth officer left before Timpa stopped moving and did not return to the scene until after Dillard had removed his knee.

The Fifth Circuit reversed the trial court’s order as to Dillard and three of the other officers and affirmed the granting of summary judgment as to the fourth officer.

If you would like to read this opinion click here. Panel consists of Circuit Judges Clement, Southwick, and Wilett. Opinion by Circuit Judge Edith Brown Clement.

Texas Supreme Court holds officer entitled to official immunity for turning on his lights.

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City of San Antonio v Riojas, 20-0293 (Tex. Feb. 18, 2022)

The Texas Supreme Court held an officer who turned his lights on to warn motorists of a traffic slowdown was entitled to official immunity.

Officer Tristan noticed a traffic slowdown and turned on his lights to warn motorists behind him.  Tristan observed a white sedan cross multiple lanes of traffic and exit the expressway. Officer Tristan then pulled onto the shoulder and radioed another officer to stop the sedan for making an improper lane change. While these events were occurring, Armando Riojas was riding his motorcycle behind Officer Tristan’s vehicle but three lanes over and directly behind a car driven by Vela. When the car in front of her slowed, Vela braked in response. Riojas swerved to avoid a collision but lost control of his motorcycle. Witnesses accused Tristan of causing the crash, including accusing him of scaring everyone on the stretch of road by turning on his lights. Riojas sued the City, alleging that Officer Tristan was negligent in turning on his emergency lights.  The City filed a plea to the jurisdiction which was denied and which the court of appeals affirmed. They determined Tristan was not entitled to official immunity. The City appealed.

Riojas concedes that by turning on his lights, Officer Tristan was performing a discretionary function within the scope of his employment. Riojas contends, however, that the City has not proven conclusively that Officer Tristan was acting in good faith. The need–risk assessment required for official immunity should not place an onerous burden on law enforcement.  Further, the need–risk balancing requirement does not go beyond the pursuit and emergency-response contexts.  The purpose for official immunity is most salient in the context of street-level police work, which frequently requires quick and decisive action in the face of volatile and changing circumstances. As a result, to be entitled to official immunity, Tristan had to only establish a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed at the time. Riojas had to then show that no reasonable officer in Tristan’s position could have believed that the circumstances justified his conduct. Here, there was no suspect, no arrest, and no inherent danger to the public.  As this was not a pursuit case, the needs-risk analysis is not required or proper. Officer Tristian established his actions were reasonable and Riojas did not establish that no reasonable officer could have made the same call. As a result, Officer Tristan was entitled to official immunity as a matter of law, which in turn, removes the waiver of immunity from the City.

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

In police pursuit case, Texas Supreme Court holds 1) deviation from policy waives immunity only if lights or sirens are required, 2) officer exceeding the speed limit is part and parcel of a police chase and not not inherently reckless and 3) no independent waiver of immunity for negligent implementation of policy

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City of San Antonio v Maspero, et al. 19-1144 (Tex. Feb. 18, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Texas Supreme Court dismissed the Plaintiffs’ claims for lack of jurisdiction.

Plaintiffs contend that their injuries arose from a San Antonio police officer’s vehicular pursuit of a fleeing suspect who crashed into their car. The chase resulted from a joint drug task force attempted to stop a car leaving suspected drug trafficking ring location. Officer Kimberly Kory was assigned to assist with the investigation. When the suspect began to flee, the task force requested assistance but did not provide any specifics about how to respond to the fleeing vehicle. SAPD’s “General Manual” contains detailed procedures governing the vehicular pursuit of such suspects.  The record demonstrated the suspect sped in heavy traffic and through active school zones. The suspect got turned around and sped past Kory, missing her vehicle, but collided with an oncoming vehicle, carrying the Plaintiffs.  They sued the City, which filed a plea to the jurisdiction.  The City asserted the emergency response exception to the waiver of immunity.  The trial court granted the plea, but the court of appeals reversed.

Under Texas Transportation Code Section 546.006, a driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons” and is not relieved of “the consequences of reckless disregard for the safety of others.” Section 546.003 states “the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals.”  Plaintiffs argued that since Kory deviated from the SAPD policy on such pursuits, she cannot take advantage of the Transportation Code section. The Court disagreed, holding §545.003 only required adherence to policies regarding use of lights and sirens. At the point where the suspects collided with the Plaintiffs’ vehicle, Kory was not speeding or taking action which would have required lights and sirens. Further, the court found the use of her siren was inconsequential for purposes of the causal nexus. Plaintiffs failed to explain how their injuries arose from Officer Kory’s alleged failure to use her siren in conjunction with the lights.  Based on the undisputed facts asserted, the use of a siren would not have changed the collision. Further, the court does not believe Kory’s actions constitute recklessness or even that a fact question exists. Law enforcement must retain discretion to assess and balance these types of risks using reasoned judgment.  Kory had specific instructions to stop the suspect. She did not chase him into an obviously dangerous area or force him to crash. Isolated, minor instances of Kory speeding or swerving do not bypass the emergency exception under the TCAA. A police officer’s speeding and swerving during a pursuit are not inherently reckless actions. Exceeding the speed limit is part and parcel of a police chase.  Further, no evidence suggests that the speeding itself was a cause of the crash.  Further, the evidence shows Kory engaged in some degree of risk assessment while in pursuit.  Finally, the Court disagreed with the court of appeals holding that the City’s immunity is waived for the negligent implementation of policy. The Court clarified there is no independent waiver of immunity for negligent implementation of policy.  When a waiver already exists, but the discretionary exception may apply, that is when the distinction between negligent formation of policy and negligent implementation of that policy kicks in.  The distinction only applies when evaluating whether the discretionary exception to an existing waiver is to apply. As a result, in this case, there is no waiver of immunity and the trial court’s order is reinstated.

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

The emergency exception to the Tort Claims not grounds for jurisdictional plea when factual disputes exist regarding an officer’s recklessness

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Crystal Green, No. 14-20-00190-CV (Tex. App.—Houston [14th Dist.] Jan. 11, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s motion for summary judgment, the city argued that it retained its immunity from suit under the emergency exception to the Texas Tort Claims Act.  The Fourteenth Court of Appeals affirmed the trial court’s judgment because there was evidence that the officer may have been reckless when driving his vehicle during the emergency.

The plaintiff was injured in an automobile accident with a city police officer collided with her vehicle.  The plaintiff sued the city under the Texas Tort Claims Act.  The city argued in a summary judgment motion that it retained its immunity from suit because the officer was heading to an emergency when the accident occurred and because the officer had official immunity.  Evidence was presented that the officer may have entered the intersection where the accident occurred at a high rate of speed and without his sirens on.  The trial court denied the City’s motion for summary judgment and the city appealed.

The Tort Claims Act waives governmental immunity for injuries or damages caused by use of a motor vehicle.  See Tex. Civ. Prac. & Rem. Code § 101.021; Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000).  Immunity is retained for damages caused due to actions that are covered by the “emergency exception,” which covers the “action of an employee while responding to an emergency call or reacting to an emergency situation.  Id. § 101.055.  But the action must not be done with conscious indifference or reckless disregard for the safety to others.  Id.  In addition, the Texas Transportation Code requires that emergency vehicles be operated safely and without “reckless disregard for the safety of others.”  Tex. Transp. Code § 546.005.   There was evidence presented in the case that raised a fact issue of whether the officer’s operation of the vehicle that caused the injuries and damages was reckless. Because there was evidence of reckless disregard, the trial court did not grant the summary judgment in favor of the city.  The court of appeals agreed and upheld the denial of the summary judgment motion remanding the case back to the trial court.

If you would like to read this opinion click here.   Panel consists of Chief Justice Christopher and  Justices Hassan and Poissant.  Opinion by Justice Margaret “Meg” Poissant.

 

Fort Worth Court of Appeals held plaintiffs’ pleadings defective in flood/drowning case but remanded to allow plaintiffs to replead

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City of Fort Worth v. Soledad Alvarez, et al. 02-20-00408-CV  (Tex. App. – Fort Worth, February 10, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Fort Worth Court of Appeals agreed jurisdiction was not pled or presented but remanded for an opportunity to cure the pleading.

Romero was traveling in a vehicle with her daughter when floodwaters due to rain swept the vehicle into an alleged rain-filled excavation on property owned by Whiz-Q that was purported to have improper drainage due to a defective excavation. Both occupants drowned. The family sued Whiz-Q, the City and TxDOT. The City filed a plea to the jurisdiction claiming that its immunity was not waived because it did not own, occupy, or control “the property where this incident occurred” or the access road Romero was on. The plea was denied, and the City appealed.

Plaintiffs argued their pleadings incorporated by implication that the flood waters on the access road constituted a defective condition, but the City asserts the pleadings only mention defective excavation. The court held the pleadings must be read as written, which does not include the flood waters as a defective condition. The City next argued that it did not have a duty to make the premises safe because it did not create the dangerous condition or agree to make safe a known, dangerous condition.   However, a premises-liability defendant may be held liable for a dangerous condition on real property if it created the condition or it “assum[ed] control over and responsibility for the premises,” even if it did not own or physically occupy the property. “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.”  While the City has exclusive control over its roadways, it entered into an agreement with TxDOT to maintain the access road. The City’s jurisdictional evidence shows that, at the time of the accident, the City did not possess—that is it did not own, occupy, or control—the property or the defective excavation on the property. Whiz-Q owns and operates its business on the property.  The court concluded that at the time of the accident, either Whiz-Q or TxDOT owned or maintained the property, not the City. The pleadings are therefore defective. However, the court noted a premise defect (as opposed to a special defect) could still be potentially raised in the pleadings under the agreement with TxDOT; at least the City failed to negate all conceivable avenues under the agreement.  As a result, the suit was remanded to allow the Plaintiffs to replead under a premise defect theory only.

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

Fort Worth Court of Appeals affirms trial court’s authority under Civil Service Act to vacate a hearing examiner award, remand for a rehearing, and require a separate hearing examiner

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Shea O’Neill v. City of Fort Worth, 02-21-00214-CV (Tex. App. – Fort Worth, Feb 3, 2022)

This is a civil service case (which has already gone up and down the appellate ladder) where the Fort Worth Court of Appeals affirmed the trial court’s ability to order a substituted hearing examiner in an appeal from an indefinite suspension. [Comment: Note, this is a 38-page opinion].

O’Neill was a firefighter for the City and was indefinitely suspended after being involved in a physical altercation with a citizen at a TCU football scrimmage.  He appealed to a hearing examiner who found for O’Neill. An appeal resulted to the Fort Worth Court of Appeals, which remanded the issue to decide if the hearing examiner improperly considered outside evidence. On remand, the court (specifically Judge Fitzpatrick) held the hearing examiner (Guttshall) violated the Civil Service Act (Tex. Loc. Gov’t Code §§143.010(g) and 143.053(d)) by considering evidence that was not presented in the final hearing.  The trial court vacated the examiner’s decision and ordered a rehearing. When the City recognized that the same hearing examiner (Guttshall) was set to preside over the rehearing, the City objected and filed a plea to the jurisdiction, which Guttshall denied. The City then filed suit (that resulted in the present appeal) under the Uniform Declaratory Judgments Act (UDJA) to hold Guttshall could not preside over the rehearing. The trial court held a trial on the merits under the UDJA claims and found Guttshall had exhibited bias, was no longer independent and ruled for the City. O’Neill appealed.

O’Neill argued the City’s declaratory-judgment lawsuit was barred by res judicata or collateral estoppel. The main issue presented to the trial court was whether Guttshall could preside over the rehearing regarding O’Neill’s appeal of his indefinite suspension. While O’Neill asserted the court failed to make the findings of fact on the issues he requested (so the findings entered could not be used in evaluating the appeal), the trial court, as the trier-of-fact has no duty to make additional or amended findings that are unnecessary or contrary to its judgment. O’Neill next asserted the City requested a rehearing when appealing Guttshall’s opinion to Judge Fitzpatrick so the issue of a hearing examiner was already addressed. Hence, his argument goes, since Judge Fitzpatrick did not expressly grant relief for a separate hearing examiner, only a rehearing, the issue was fully litigated. However, when an appellate court remands a case and limits a subsequent trial to a particular issue, the trial court may only determine that particular issue. Because of the remand, Judge Fitzpatrick was therefore constrained to decide only the City’s procured-by-unlawful-means claim and nothing provided for her to determine whether Guttshall had exhibited bias and was thus no longer an independent or impartial hearing examiner. As a result, res judicata and collateral estoppel are not triggered. Next, O’Neill asserted that since Guttshall denied the City’s plea, the issue was already addressed and the City cannot appeal. However, if the denial were considered the same as an arbitrator’s award (which O’Neill argued it was), such an award is appealable. But more importantly, the City’s plea to the jurisdiction and declaratory-judgment action accomplished separate purposes. The City’s plea was an objection to Guttshall presiding over the rehearing, which was a requirement to preserve the issue.  The UDJA claim went beyond mere preservation and sought express relief on the uncertainty of the issue under the wording of Chapter 143 (which does not expressly address this situation). Next, O’Neill argued the trial court erred by impliedly finding that subject-matter jurisdiction exists even though the City failed to exhaust its administrative remedies.  However, since the declarations sought are strictly limited to statutory interpretations, they are questions of law that do not require exhaustion. Next O’Neill argued that the trial court erred by fashioning a remedy not expressly authorized by the Civil Service Act, i.e., allowing a rehearing before a new hearing examiner. The trial court used guidance by referring to the Texas Arbitration Act (TAA) in interpreting/applying the Civil Service Act. The sections of the Civil Service Act make no provision for a scenario in which the district court vacates the hearing examiner’s award and remands the case for a rehearing. The court noted that the Texas Supreme Court has looked to the TAA in prior opinions to fill in the gaps when the Civil Service Act is silent.  Turning to the TAA concerning the issue here, it has a specific section dedicated to rehearings after an arbitration award is vacated. The Civil Service Act states in multiple locations that a hearing examiner must be independent and therefore neutral. When a hearing examiner is found to have developed bias against one party, they are not independent. To allow a biased hearing examiner to preside over the rehearing merely because the Civil Service Act is completely silent regarding rehearings is against the purpose of the Act. The trial court, following the Texas Supreme Court’s example for crafting remedies when the Civil Service Act provides none, is permitted to look to the TAA for guidance.  As a result, the trial court’s order is affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Bassel and Justice Walker. Memorandum Opinion by Justice Bassel.

Beaumont Court of Appeals reinstates arbitrator award for City in civil service termination.

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City of Beaumont, Texas v. James Mathews, 09-20-00053-CV (Tex. App. – Beaumont, Feb. 3, 2022)

This is a civil service/collective bargaining/arbitrator appeal (which has gone up and down the court of appeals route already) where the Beaumont Court of Appeals reversed the trial court’s order and reinstated the arbitrator’s award. [Comment: warning, this is a 38-page opinion].

Firefighter Mathews was discharged from the City of Beaumont Fire Department after a formal investigation into a rear-end collision involving Mathews occurred. Driver Freeman apparently rear-ended the vehicle driven by Mathews, causing Mathews to exit his vehicle and strike Freeman one or more times. The incident occurred while Mathews was off-duty, but the department’s rules and regulations apply certain standards of conduct regardless of duty status. The arbitrator admitted a statement from Freeman asserting such, which was corroborated by other evidence. Mathews appealed the termination to an arbitrator, who ultimately ruled in favor of the City, confirming Mathews’ termination. Mathews appealed to the district court, which reversed the arbitrator’s award, holding the arbitrator lacked jurisdiction and exceeded his jurisdiction. The City appealed.

The court found that Mathews timely filed an appeal of the termination, selected to proceed before an arbitrator and that Mathews signed the appeal letter.  By doing so, he triggered the arbitrator procedure. Mathews argued the notice of dismissal Chief Huff gave him failed to advise him he had the right under the Act to appeal before either the Commission or a neutral arbitrator. But the question is whether the lack of that information is jurisdictional when the record shows the firefighter was aware of the options that were available to him under the Act. Mathews never testified he was unaware he could select arbitration or civil service commission as an appeal forum. Likewise, Chief Huff never testified that she told Mathews he could appeal only to a neutral arbitrator. Mathews’ appeal letter cited the exact sections in the Act that provide firefighters with options in choosing the forum where they may appeal.  In fact, the evidence shows just the opposite, as the live pleadings indicate it was because of the Union’s distrust of the Beaumont civil service commission that Mathews selected the arbitrator. While Chief Huff’s notice does not contain clear and unambiguous language regarding the options it did notify Mathews that he should look to the Collective Bargaining Agreement to decide how to proceed.  Here, the record conclusively proves that Mathews decided after seeking advice from his union that it was in his best interest to demand his appeal be heard by a neutral arbitrator rather than going before a Commission. As a result, the arbitrator’s jurisdiction was properly triggered. Next, under the Act, neutral arbitrators exceed their jurisdiction when they conduct the proceedings in a manner “not authorized by the Act or [a manner that is] contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine.” The City filed pretrial motions with attached evidence and the arbitrator denied the motions. During the evidentiary hearing, the City submitted some of the same evidence, which was admitted by the arbitrator. Mathews argued the arbitrator improperly considered evidence submitted through the pretrial motion procedure instead of exclusively at the evidentiary hearing. The district court held the arbitrator could not consider pretrial evidence or motions. However, the Act allows the parties to file pretrial motions and expressly states it is not a violation of the Act as long as copies of the filings are served on the opposing party. Thus, the City did nothing wrong by filing a pretrial motion since the certificate of service states the City served the motion on Mathews’ legal representative and Mathews never raised a lack of service. In turn, the arbitrator did not violate the Act by conducting a hearing on the City’s motion. Next, the court held that the record does not demonstrate the arbitrator considered evidence that was not admitted during the evidentiary hearing. As factfinders, neutral arbitrators are the sole judges of the admissibility of the evidence and the weight and credibility to be given the evidence admitted during a final hearing. Comparing the arbitrator’s findings of fact and conclusions with the evidence presented during the hearing, the court determined the arbitrator relied upon the evidence admitted at the final hearing. The district court conducted a factual and legal sufficiency review of the evidence, but that is not authorized by the Act. District court’s appellate review of arbitrator decisions are restricted to jurisdictional grounds and claims the award was procured by fraud, collusion, or through the use of other unlawful means. As a matter of law, the record present does not allow the district court to reverse the arbitrator’s decision. The district court’s order and final judgment have deprived the City of the statutory benefit of an efficient and speedy resolution through the Act. As a result, the district court’s order was reversed and the arbitrator’s decision was reinstated.

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