City allowed to appeal civil service order since hearing examiner performed her own Internet search on medication side-effects

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City of Fort Worth v. Shea O’Neill, 02-18-00131-CV (Tex. App. – Fort Worth, Jan. 23, 2020).

The Fort Worth Court of Appeals reversed-in-part and affirmed-in-part a trial court order regarding whether the court had jurisdiction over an appeal from a hearing examiner’s decision under the Civil Service Act.

Shea O’Neill was indefinitely suspended as a firefighter with the City.  O’Neill, while on work-related leave, struck a 70-year-old fellow parent at a football scrimmage. The parent alleged he sustained facial injuries, several cracked and broken teeth, and a bloody nose.   The fire chief found that O’Neill had violated several fire-department rules and regulations and imposed the suspension.  O’Neill appealed and a hearing examiner reversed the suspension. The City appealed to the district court, which granted O’Neill’s plea to the jurisdiction holding it had no jurisdiction over the hearing examiner’s decision. The City appealed.

The City asserts the district court had jurisdiction to consider the appeal for two reasons: (1) the hearing examiner’s decision was procured by unlawful means because she considered evidence not admitted at the hearing and (2) the hearing examiner exceeded her jurisdiction because she concluded that the fire department’s due-process violations compelled her to reinstate O’Neill.  The Civil Service Act mandates that a decision be made on evidence submitted at the hearing. A hearing examiner’s decision is “final and binding on all parties.” An appeal is permitted only if the hearing examiner was without jurisdiction or exceeded his/her jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. It is undisputed the hearing examiner conducted her own independent Internet research on the side effects of certain drugs. O’Neill counters the search results were not “procured” through unlawful means. In ordinary usage, “procure” means to “to cause to happen or be done” and to “bring about.”  The hearing examiner found the “slap” was defensive in nature and unlikely to have caused the broken teeth or bones and dismissed the nosebleed as being caused by the slap. The court held a fact issue exists regarding the side-effects evidence and whether it led the hearing examiner to decide that the evidence overall did not support the fire chief’s findings and conclusions.  Such was improper and was procured through an unlawful means as the medication issue was not submitted during the hearing as evidence.  As a result, the “procured through unlawful means” ground entitled the City to reversal of the order granting the plea and a remand for further proceedings. However, the hearing examiner also determined that the department did not fully investigate the facts and allegations and did not give O’Neill an adequate opportunity to respond to the allegations. Such is within her discretion. Nothing in the Civil Service Act prohibits hearing examiners from reinstating a firefighter based on a finding that the department did not give due process during the disciplinary process. That ground was overruled by the court, even though it still remanded the case.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr, Visiting Justice Massengale.  Memorandum opinion from Justice Kerr. The docket page with attorney information can be found here.

Knowledge of a hypothetical hazard is insufficient to waive immunity under the TTCA for premise defects says 1st Court of Appeals

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The City of Houston v. Bobby Terry, 01-19-00197-CV (Tex. App. – Houston [1st Dist.], Jan. 23, 2020).

This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the  City. Terry was employed by a contractor at the time, but he was accompanied by a City employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power.  However, when Terry touched the lightbulb which needed replacing 300 feet up the tower, he was shocked. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because (1) power immediately stops running to the tower when the control box’s faceplate is removed and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence existed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premise defects. The City filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premise defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The Tort Claims Act’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premise defect theory, the City only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premise defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premise defect analysis. Under a premise defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off.  Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Lloyd, Justice Goodman, and Justice Landau.  Memorandum opinion by Justice Goodman. The docket page with attorney information can be found here.

Fort Worth Court says under premise defect claim plaintiff paid for use of the property even though she was using public sidewalk

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The City of Fort Worth, Texas v. Dianne Posey, 02-19-00351-CV, (Tex. App – Fort Worth, Jan. 16, 2020)

This is a premise liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (“WRMC”). Posey asserts she paid for entry to the  Coliseum. The City asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the City.  After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee.  The City filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the City appealed.

If Posey was a licensee, she must show that the City had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the City should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the City. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the City to rent the premises. However, the City asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the City that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the City’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Birdwell, Bassel, and Wallach. Opinion by Justice Birdwell. Docket page with attorney information found here.

Fort Worth Court of Appeals holds no waiver of immunity for declaratory judgment relief against county for competitive bidding violation

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Tarrant County, Texas v. Jeffrey D. Lerner, 02-19-00330-CV, (Tex. App – Fort Worth, Jan. 9, 2020)

This is a declaratory judgment/immunity case where the Fort Worth Court of Appeals held the County retained immunity for declaratory claims alleging violations of the competitive bidding statute.

The County had a contract with Dispute Resolution Services of North Texas (DRS) to manage the County’s alternative dispute-resolution services and was valued at over $400,000 per year. When renewing the contract, Tarrant County did not seek competitive bids for the contract. A competitor, Lerner, sued asserting after the last renewal the contract was invalid due to the lack of bidding. The County filed a plea to the jurisdiction which was denied.

The immunity waiver contained in the competitive bidding statute is specific and narrowly drawn – “Any property tax paying citizen of the county may enjoin performance under a contract made by a county in violation of [the Act].” Tex. Loc. Gov’t Code Ann. § 262.033. The court held the Legislature intended to waive immunity for injunctive-relief claims arising from violations of the statute. However, that does not waive immunity for attorney’s fees or any other form of relief. As a result, the court found the County retained immunity for Lerner’s declaratory judgment claims. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Gabriel, and Kerr. Memorandum Opinion by Justice Gabriel. Docket page with attorney information found here.

No waiver of immunity when non-profit sues to invalidate transfer of real property to city

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City of Houston and Keith W. Wade v. Hope for Families, Inc, 01-18-00795-CV, (Tex. App – Houston [1st Dist.], Jan. 9, 2020)

This is a governmental immunity case where the First  Court of Appeals held the contracting non-profit did not establish a waiver of immunity.

Hope for Families, Inc. (HFF) acquired the property for a community development project financed by the City which fell through.  HFF negotiated a transfer of the property to the City in exchange for debt forgiveness. HFF later sued to invalidate the transfer alleging the City’s negotiator, Wade, committed fraud when negotiating. The City filed a plea to the jurisdiction which was denied and the City appealed.

HFF asserts “A corporation may convey real property of the corporation when authorized by appropriate resolution of the board of directors or members.” Tex. Bus. Org. Code § 22.255, which it did not do. However, that provision does not grant HFF the right to sue to invalidate a transfer and does not waive immunity. HFF also sued Wade as an individual. While Wade is immune individually (as fraud is an intentional tort), the court held HFF should have the opportunity to replead an ultra vires claim.

If you would like to read this opinion click here. Panel consists of Justices Keys, Kelly, and Goodman.  Memorandum Opinion by Justice Goodman. Docket page with attorney information found here.

El Paso Court of Appeals holds concrete barrier and canal at end of roadway is a special defect

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City of El Paso, Texas v. Albert Lopez and Lexby Lopez, 08-19-00056-CV, (Tex. App – El Paso, Dec. 12, 2019)

This is a Texas Tort Claims Act (“TTCA”) case where the El Paso Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Plaintiff Lopez was traveling on his motorcycle at night when the roadway ended with a concrete barrier and canal. There were neither road signs nor any other type of warnings or lighting. Lopez struck the barrier and was killed. The police investigation report noted “the driver . . . failed to stop for the end of the street or roadway and crashed his bike into the canal.” A nearby resident also gave a statement that “there are a lot of cars that crash into the canal” because “[t]here are no warning signs to let you know that the street ends so when people come out the bars they wind up crashing at the canal.”  The investigation listed “lack of signs and illumination” as factors in causing the accident.  Lopez’s family brought a wrongful death claim against the City. The City filed a plea to the jurisdiction, which was denied.

The Plaintiffs failed to provide statutory notice of the accident but asserted the City had actual notice of its fault. Citing to the recent Texas Supreme Court case in Worsdale v. City of Killeen, 578 S.W.3d 57 (Tex. 2019), the court held the “critical inquiry is the governmental unit’s actual anticipation of an alleged claim rather than subjective confirmation of its actual liability.” After reviewing the record the court held the  City had actual notice of the claim under the TTCA. Next, the court analyzed whether the concrete barrier was a special defect. Both the canal and the concrete barrier were located on the roadway’s path, neither of which were visible in the dark to ordinary motorists. As a result, the court determined it was a special defect and the plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley, Justices Rodriguez and Palafox. Opinion by Justice Birdwell. The attorneys listed for the Plaintiffs are Ramon King Jr. and Lloyd Robles.  The attorney listed for the City is Anelisa Benavides.

4th Court of Appeals holds city vendor’s fair maybe proprietary function so trial court properly denied plea to the jurisdiction

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City of Helotes v. Jean Marie Page, 04-19-00437-CV, (Tex. App – San Antonio, Dec. 18, 2019)

This is an interlocutory appeal from the denial of the City’s plea to the jurisdiction in which San Antonio Court of Appeals held the Plaintiff’s injuries were caused during the performance of a potential proprietary function.

A City employee dropped a table while removing it from a parked golf cart. The table allegedly struck the accelerator on the cart, propelling it forward and striking Plaintiff Page. The accident occurred when the City employee was setting up for an event called the “MarketPlace at Old Town Helotes” and is a vendor’s fair where the City rents booths to vendors who sell merchandise and food. The MarketPlace is held on public streets in “Old Town Helotes,” and the streets are closed to traffic. The MarketPlace is sponsored, supervised, regulated, operated, and managed by the City. Page sued the City.  The City filed a plea to the jurisdiction, which was denied.

The Texas Tort Claims Act  defines proprietary functions as “those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality.” Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(b). Proprietary functions are “usually activities ‘that can be, and often are, provided by private persons.’”  Citing to  Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) the court of appeals noted it was a factually specific analysis as to whether an activity is proprietary or governmental. A city’s proprietary functions “will often benefit some nonresidents,” but in determining whether the MarketPlace was intended to benefit the general public or the City’s residents, courts focus on whether the activity “primarily benefits one or the other.” The facts demonstrated the primary objective was to assist local businesses by generating community involvement in the Old Town Helotes area which undisputedly “raised funds for the City’s budget.” The revenues were recorded in the MarketPlace budget, and any profits could remain in the MarketPlace line item or be used for other City departments. The City did not provide any evidence the event was necessary for City operations. As a result, “some” evidence exists the MarketPlace may be proprietary.  As a result, the pleadings indicate jurisdiction and the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justice Alvarez, Rios, and Rodriguez.  Memorandum Opinion by Justice Alvarez. Docket page with attorney information found here.

U.S. Supreme Court remands statutory campaign limit case noting court of appeals upheld it under the wrong analysis

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Thompson v. Hebdon, 140 S. Ct. 348 (2019)

In this case, the U.S. Supreme Court held the court of appeals improperly analyzed Alaska’s statute limiting political contributions as constitutional.

Alaska law limits the amount an individual can contribute to a candidate for political office, or to an election-oriented group other than a political party, to $500 per year. Petitioners challenged the limit as an unconstitutional restriction on their First Amendment rights. The trial court and court of appeals upheld the limit.

The Ninth Circuit upheld the law noting the evidence necessary to justify a legitimate state interest is low: the perceived threat must be merely more than “mere conjecture” and “not . . . illusory.”  Under this analysis, the circuit court held the limit was narrowly tailored and allowed effective campaigning. However, such an analysis ignored the Supreme Court’s opinion in Randall v. Sorrell, 548 U. S. 230 (2006).  “[C]ontribution limits that are too low can . . . harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.” It also ignored several “danger signs” listed in Randall such as lower comparable limits in other states, a failure to adjust for inflation over time (Alaska’s has been the same for 23 years), and the application to different offices. The State failed to provide “any special justification that might warrant a contribution limit so low.”   As a result, the Supreme Court vacated the Ninth Circuit’s opinion and remanded for consideration consistent with its opinion.  Justice Ginsburg wrote separately to emphasize that while remand is proper, Alaska has the second smallest legislature in the country and derives 90% of its budget from the oil and gas industry. As a result, the justifications for such a low limit must be analyzed consistent with Alaska’s comparable place in the country.

If you would like to read this opinion click here. Per curiam opinion.

Supervisor entitled to qualified immunity as to one suspended employees 1st Amendment claim but not the other

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Benfield v. Magee, 18-30932, (U.S. 5th Cir. December 17, 2019)

This is a First Amendment in employment action where the U.S. 5th Circuit reversed the denial of the individual supervisor’s qualified immunity defense and dismissed the claims as to one employee, but not the other.

Warren and Benfield worked in Louisiana as paramedics for the Desoto Parish Emergency Medical Services. Louisiana paramedics must complete annual recertification training, which required the approval of the medical director. Warren asserts he suggested changes to the procedures manual which would prevent Magee, their supervisor, from electronically signing in lieu of the medical director. Warren asserts afterward Magee harassed him (including criticizing Warren’s religious beliefs, denying him a promotion, accusing him of inappropriate relationships.)  When a new co-medical director inquired into the Plaintiff’s recertification, they blamed Magee for telling them to electronically falsify the records. Magee suspended Warren and Benfield for falsification.   Warren and Benfield sued Magee directly, claiming that he suspended them for exercising their First Amendment free-speech and free-association rights.  The trial court denied Magee’s assertion of qualified immunity and he appealed.

Warren’s letter of changes to the procedure’s manual occurred 19 months prior to his suspension. And while a plaintiff can establish a causal connection with other inferences, Warren’s allegations do virtually nothing to establish a chronology or relationship. He states that this harassment occurred sometime after the June 2015 letter, yet provides no further specificity.  Warran would be unable to overcome the qualified immunity defense without stating with specificity when he was harassed.  As a result, his assertions are insufficient to establish a causal connection and such claims are dismissed. However, Magee made no substantive argument for dismissing Benfield’s free-speech claim, believing Benfield raised only a freedom of association claim. As a result, the denial was proper as to Benfield.

If you would like to read this opinion click here. Panel consists of Justices Stewart, Clement and Ho.  Opinion by Justice Clement. The attorney listed for Magee is Edwin H. Byrd.  The attorney listed for Warren and Benfield is Bryce J. Denny.

BOA appeal moot due to relocation of shed built in setback says Fort Worth Court of Appeals

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Oak Point Board of Adjustment v. Jeff Houle, 02-19-00068-CV, (Tex. App – Fort Worth, Dec. 12, 2019)

This is a board of adjustment appeal where the Fort Worth Court of Appeals reversed the denial of the Board’s plea to the jurisdiction and dismissed the case.

The City of Oak Point has a zoning ordinance establishing a 50-foot front-yard setback in the residential neighborhoods. Houle, a resident, complained about the variance to the set-back granted to his neighbor, Bobby Pope. Pope received a permit and built a shed, but due to a miscalculation, it was built in the setback. The Board of Adjustment (BOA) granted the variance. Houle attempted to challenge it by suit in the county court at law. The BOA filed a plea to the jurisdiction which was denied.  It appealed.

The BOA advised Pope had since moved the shed out of the setback. By variance, the BOA effectively excepted Pope’s shed from the front-yard setback requirement. Houle’s petition seeks to undo that exception. However, the variance expressly stated that should the shed ever be moved, the variance would be nullified, which is exactly the relief requested by Houle. The shed’s relocation means that Houle has obtained the relief he sought by his claims, and a judicial determination cannot have any practical legal effect on an existing controversy rendering his lawsuit moot. None of Houle’s arguments asserting why the suit remains live apply. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Gabriel, Birdwell, and Womack.  Opinion by Justice Womack.  Docket page with attorney information found here.

U.S 5th Circuit holds Plaintiffs had a duty of diligence to inquire about the status of their case – emails mistakenly going to a spam folder was not excusable neglect

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Trevino v City of Fort Worth, 19-10414 (U.S. 5th Cir. December 10, 2019)

This is a custodial death case brought under 42 U.S.C. § 1983.  However, the opinion is one of procedure and excusable neglect in not responding to a motion.

City police stopped Alfredo Cortez and his girlfriend Alisha Trevino for an inoperable brake light. Trevino ingested two baggies of methamphetamine that she had hidden in her pants before the officers could view her in the car. She died later that night. Plaintiffs filed suit against the City and the officers involved in Trevino’s arrest. The officers were dismissed.  The City then filed a motion to dismiss to which the Plaintiffs did not respond, citing computer difficulties in receiving court notices. After the motion was granted Plaintiffs filed a motion for new trial which was denied. Plaintiffs appealed.

Plaintiffs’ counsel failed to register with the court’s electronic filing system, in violation of local rules, which is why he did not receive the notice. The Plaintiffs also concede that the failure to file was within Plaintiffs’ counsel’s “reasonable control.”  Plaintiffs had a duty of diligence to inquire about the status of their case. The fact that the case was not on Plaintiffs’ counsel’s “radar for active cases” does not free Plaintiffs of this duty.  Failure to file a response to a motion to dismiss is not a manifest error of law or fact. Rule 60(b)(1) allows for relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.” The Supreme Court has explained that the determination of what sorts of neglect will be considered excusable is “an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”  However, “[g]ross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.” In fact, a court would abuse its discretion if it were to reopen a case when the reason is one attributable solely to counsel’s carelessness.  Further, emails mistakenly going to a spam folder do not merit Rule 60(b) relief. Judgment affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Owen, and Justices Southwick and Willett.  Per curiam opinion. The attorney listed for Trevino is Jeffrey M. Wise.  The attorney listed for the City is Lynn Winter.

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

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

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

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

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

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

Austin Court of Appeals holds Austin’s short-term rental regulations unconstitutional (assembly clause also declared fundamental right entitled to strict scrutiny)

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Ahmad Zaatari v City of Austin, 03-17-00812-CV (Tex. App. —  Austin, Nov. 27, 2019).

This is a dispute regarding the City of Austin’s regulation on short-term rental properties. The Austin Court of Appeals reversed-in-part and affirmed-in-part the City’s plea to the jurisdiction. [Comment: This is a 43-page opinion and 18-page dissent. So, the summary is a bit longer than normal]

In 2012, Austin adopted an ordinance amending its zoning and land-development codes to regulate Austinites’ ability to rent their properties as short-term rentals.  Several other amendments occurred at different times adjusting the definitions and scope of the codes until, in 2016, Property Owners sued the City for declaratory and injunctive relief to declare the regulations unconstitutional. The Property Owners (which also included the State of Texas as a party) moved for summary judgment while the City filed a plea to the jurisdiction and a no-evidence motion for summary judgment. The trial court denied the Property Owner’s MSJ, denied the City’s plea, but granted the City’s summary judgment.  Everyone appealed.

The City’s plea to the jurisdiction challenges the State’s standing to intervene in this dispute, the Property Owners’ standing to bring claims on behalf of tenants, and the ripeness of the underlying claims. The court held  the State’s standing to intervene in this matter is  unambiguously conferred by the Uniform Declaratory Judgment Act which states when the validity of a statute or ordinance is brought, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. Tex. Civ. Prac. & Rem. Code § 37.006(b).  The court next held the underlying matters were ripe because some provisions of the 2016 ordinance took effect immediately, while others were not effective until 2022. Facial challenges to ordinances are “ripe upon enactment because at that moment the ‘permissible uses of the property [were] known to a reasonable degree of certainty.’” The court held  the City’s alleged constitutional overreach itself is an injury from which the Property Owners and the State seek relief.  Further, governmental immunity does not shield the City from viable claims for relief from unconstitutional acts. As a result, the plea was properly denied.

The court next determined the trial court erred in several evidentiary rulings, which mainly deal with the public dispute over short-term rentals. The State and the Property Owners filed traditional motions for summary judgment on their claims regarding the constitutionality of the ordinance. The Texas Constitution prohibits retroactive laws. The State contends that the ordinance provision terminating all type-2 operating licenses is retroactive because it “tak[es] away th[e] fundamental and settled property right” to lease one’s real estate under the most desirable terms. While disagreeing on the effect, the City conceded the ordinance retroactively cancels existing leases. Not all retroactive laws are unconstitutional. The Court held the regulation operates to eliminate well-established and settled property rights that existed before the ordinance’s adoption.  Upon reviewing the record the court held the City made no findings to justify the ordinance’s ban on type-2 rentals and its stated public interest was slight. Nothing in the record demonstrates this ban would address or prevent any listed concerns, including preventing strangers in the neighborhood, noise complaints, and illegal parking. In fact, many of the concerns cited by the City are the types of problems that can be and already are prohibited by state law or by City ordinances banning such practices. Further, for four years the City did not issue a single citation to a licensed short-term rental owner or guest for violating the City’s noise, trash, or parking ordinances. The purported public interest served by the ordinance’s ban on type-2 short-term rentals cannot be considered compelling. Private property ownership is a fundamental right. The ability to lease property is a fundamental privilege of property ownership. Granted, the right to lease property for a profit can be subject to restriction or regulation under certain circumstances, but the right to lease is nevertheless plainly an established one.  Based on the practices performed in Austin over the years, short-term rentals have a settled interest and place in the City. The City’s ordinance eliminates the right to rent property short term if the property owner does not occupy the property. As a result, the regulations are unconstitutionally retroactive.

The court then addressed the Property Owner’s claim the regulations violated their right to assembly under the Texas Constitution. After a lengthy analysis, the court held the Texas Constitution’s assembly clause is not limited to protecting only petition-related assemblies and the judicially created “right of association” does not subsume the Texas Constitution’s assembly clause in its entirety.  The right is a “fundamental right” for constitutional analysis purposes and must be examined under a strict scrutiny analysis. The regulation sections challenged limited the number of persons at a rental at any one time, the hours of the day a rental could be used,  number of permitted leaseholders, and various other congregation related activities. The City already has various nuisance ordinances in place to address the negative effects of short-term rentals on neighbors. As a result, the City failed to establish a compelling interest that justifies a different ordinance which is not narrowly tailored. The City has not provided any evidence of a serious burden on neighboring properties sufficient to justify the additional regulations, which therefore violate the assembly clause of the Texas Constitution.

The court reversed that part of the district court’s judgment granting the City’s no-evidence motion for summary judgment and denying the Property Owners’ and the State’s motions for summary judgment. It rendered judgment declaring specific sections of the City Code void.

Justice Kelly  dissented asserting 1) the sections were not unconstitutionally retroactive (with analysis), 2) the Assembly Clause assures Texans the fundamental right to peaceably gather for purposes of meaningful civic discourse without fear of retribution – not to have short-term rentals (which are assembly-neutral zoning regulations that have a rational basis), 3) loud noise, obstructing infrastructure, flouting law enforcement, public disturbances, threats to public safety- all these may make an assembly non-peaceable and can be regulated, and 4) the majority opinion is also out of step with Texas “fundamental right” precedent (i.e. declaring rights fundamental, and thus beyond ordinary democratic give-and-take, is a weighty matter, unjustified in this case).

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Goodwin and Kelly.  Opinion by Chief Justice Rose.  Dissenting Opinion by Justice Kelly found here. Docket page with attorney information found here.

Petition Circulators are not “election officials” subject to the fraud provision of the Election Code says Fort Worth Court of Appeals

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Robert S. Johnson v. Jeff Williams, et al., 02-19-00089-CV (Tex. App. – Fort Worth, November 27, 2019)

The Fort Worth Court of Appeals affirmed a plea to the jurisdiction in a case where a resident sued to invalidate a charter amendment.

Arlington residents initiated a petition drive for an amendment to the city charter that would impose term limits on the mayor and the city council (Proposition E) which was submitted to the voters and passed.  Arlington resident Johnson asserted that because the petition summary misled petition signers, the petition’s circulators had committed fraud, and the resulting amendment should be struck down. He filed suit to invalidate the provision. The City defendants filed a plea to the jurisdiction and motion for summary judgment, which were granted. Johnson appealed.

Elections are political matters, and the courts have jurisdiction of political matters only if the law has specifically granted such authority.  The Texas Election Code allows an election contest for election fraud only if an election officer or other person officially involved in the administration of the election commits the alleged fraudulent act. The petition circulators do not formally qualify as election officers. After performing a statutory construction analysis, the court determined the circulators also do not qualify as a person “officially involved in the administration of the election.”  As a result, the plea was properly granted. The court declined to allow Johnson the ability to replead. However, the court noted that since the trial court lacked jurisdiction, it lacked the authority to enter an order on the summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Gabriel, Birdwell, and Womack.  Memorandum Opinion by Justice Birdwell. The docket page with attorney information can be found here.

No waiver of immunity for city contract to install sewer lines on property says 4th Court of Appeals

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Twanda Brown v. City of Ingram04-1900508-CV (Tex. App. —  San Antonio, Nov. 20, 2019).  

In this suit, the San Antonio Court of Appeals affirmed the granting of the City’s plea to the jurisdiction related to counterclaims regarding utility services.  

The City of Ingram (“the City”) sued Brown and eight other defendants, seekingdeclaratory judgment that its ordinances regarding penalties and permits for utilities and wastewater are “valid and reasonable exercises of the City’s police powers.” Brown answered the City’s suit and asserted a counterclaim for breach of contract, alleging the City “breached its Contract for Wastewater Services by knowingly permitting an unqualified, unlicensed subcontractor” to connect her property to the City’s sewer system. Brown alleged the subcontractor’s negligence “sever[ed] a gas line and caus[ed] damages to Brown and her property.” The City filed a plea to the jurisdiction which was granted.  Brown appealed.  

The Texas Tort Claims Act makes sanitation, water, and sewer services governmental functions, thereby entitling the City to immunity absent a waiver. The City’s actions of connecting residents to the city’s sewer system is a governmental functionImmunity is waived for breach of contract claims for goods or services provided to the entityBrown’s pleadings allege the purported contract was an agreement to provide goods or services to Brown (i.e. construction and installation of service lines), not the other way around. Because any purported contract does not involve the provision of goods or services to the City, it is not a “contract subject to” the waiver in Texas Local Government Code chapter 271 subchapter I.  

Several days after the trial court granted the plea to the jurisdiction, the City filed a motion to strike an affidavit submitted by the City on the basis that counsel for the City learned the affiant made a mistake as to the location of a photograph.  Brown filed an objection but also sought in the alternative, the trial court re-open the hearing. The court noted the record does not reflect whether the trial court ruled on either. However, the court held the issue is irrelevant to the ability to rule on the appeal as it does not change the analysis of the type of contract involved.  Finally, the court denied the City’s request for sanctions as they do not believe the claims “lacked any reasonable basis in law.”   

If you would like to read this opinion click hereThe panel consists of Chief Justice Marion, and Justices Alvarez and Chapa. Opinion by Chief Justice Marion. The attorney for Brown is listed as Roger Gordon.  The attorneys listed for the City are Charles E. ZechScott Micheal Tschirhart  and Llse D. Bailey