Beaumont Court of Appeals held Plaintiff failed to overcome emergency responder exception under Texas Tort Claim Act in vehicle accident case

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Texas Dept. of Pub. Safety v. Kendziora, 09-19-00432-CV (Tex.App.—Beaumont, Nov. 5, 2020)

This is an interlocutory appeal from the denial of Texas DPS’s plea to the jurisdiction in a case involving a car accident while a DPS trooper (“Chapman”) was responding to an emergency. The Beaumont Court of Appeals reversed the denial.

Chapman was responding to a call reporting one hundred people fighting at a sports complex. En route, he approached a red light with his lights and siren activated, activated his airhorn, and slowed to a near stop while clearing the intersection. He looked both ways while crossing the intersection and cleared multiple lanes before being struck by Kendziora. Kendziora filed suit under the Texas Tort Claims Act (“TTCA”) for personal injuries sustained from that collision. DPS put forth the emergency exception defense under TTCA, which preserves immunity if the employee was in compliance with applicable law or was not acting recklessly. Chapman testified that he considered the nature of the emergency in deciding to respond immediately and urgently, while still ensuring vehicles at the intersection were stopped before proceeding. Kendziora testified that she did not hear any sirens or see any police lights prior to the collision.

The Court of Appeals held that Kendziora failed to raise a fact issue as to whether Chapman acted recklessly when he entered the intersection. She did not present any evidence showing Chapman failed to slow as necessary before entering the intersection or that he acted recklessly. Kendziora argued that the dashcam video is evidence of the reckless actions, but the video was not tendered or admitted into evidence in the lower court and was not part of the appellate record.

If you would like to read this memorandum opinion click here. Panel consists of Chief Justice McKeithen, Justice Kreger, and Justice Johnson. Opinion by Chief Justice McKeithen.

The Sixth Court of Appeals affirmed the dismissal of TTCA case because the trial court was not required to review a late-filed amended petition in making its decision on summary judgment. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Raul Gonzales v. City of Farmers Branch, No. 06-20-00054-CV (Tex.App.—Texarkana  November 5, 2020) (mem. op.).

This is a Texas Tort Claims Act (“TTCA”)/vehicle accident case where the Texarkana Court of Appeals affirmed the trial court’s summary judgment in favor of the City.

The plaintiff was a passenger in a vehicle where a police officer shot and killed the driver of the vehicle.  The plaintiff alleged that the city negligently trained and supervised its officers and for reckless use of the firearm.   The city filed a plea to the jurisdiction and a motion for summary judgment arguing that the plaintiff’s claims were for intentional torts for which the city retains immunity.  The trial court granted the city’s plea to the jurisdiction and summary judgment, dismissing the plaintiff’s claims.  On the same day, the plaintiff filed an amended petition.  The plaintiff appealed the trial court’s judgment arguing that: (1) he should have been allowed to speak at the non-jury trial; and (2) that the trial court should have taken into consideration his late amended petition before issuing its judgment.

The court held that amended petitions must be filed within seven days of the date of a summary judgment proceedings or have leave of the court before being filed. Tex. R. Civ. P. 63;  Horie v. Law Offices of Art Dula, 560 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 2018, no pet.).  The court of appeals noted that no trial was held in this case, it was decided by summary judgment, and thus there was no trial for the plaintiff to be excluded from.  Further, the court held Gonzales did not appeal the dismissal on substantive grounds and only argued the amended petition should have been considered.  The court of appeals affirmed the trial court’s judgment dismissing the plaintiff’s claims because the plaintiff did not request leave to file the amended petition as required by the Rules of Civil Procedure.

If you would like to read this opinion click here.   Panel consists of  Chief Justice Morriss and Justices Burgess and Stevens. Opinion by Chief Justice Josh R. Morriss, III.

El Paso Court of Appeals held Governor’s executive orders control over county judge order in the event of conflicts

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State of Texas, et al v. El Paso County, Texas, et al., 08-20-00226-CV (Tex. App. – El Paso, Nov. 13, 2020).

This is an interlocutory appeal from the denial of the temporary injunction involving a conflict between the county judge’s executive order and the Governor’s executive order.  The El Paso Court of Appeals reversed the denial.

The Governor’s executive order GA-32 allows bars and open with reduced capacity in October of 2020. After the County had a surge in COVID-19 cases, El Paso County Judge Ricardo Samaniego issued an executive order including a stay at home mandate and eliminating social gatherings not confined to a single household. While it listed several permitted essential services, bars were not included and restaurants could only allow curbside pickup.  The State and a collection of restaurants sued the County and the judge asserting the order was contrary to the Governor’s order. They sought a temporary injunction to prevent enforcement of the County Judge’s order, which the trial court denied. Plaintiffs appealed.

The court first wanted to make clear that it was not deciding on the wisdom of either order, only the statutory construction provision as to which controlled over the other. The Governor’s order contains a preemption clause countermanding any conflicting local government actions, but the County order states any conflict requires the stricter order to apply. County judges are deemed to be the “emergency management director” for their county. The Texas Disaster Act contemplates that a county judge or mayor may have to issue a local disaster declaration and has similar express powers to those issued to the Governor. However, a county judge is expressly referred to as the “agent” of the Governor, not as a separate principle. Further, even if the County judge had separate authorization, the Legislature has declared the Governor’s executive order has the force of law. State law will eclipse inconsistent local law. Additionally, the Act allows the Governor to suspend the provisions of any regulatory statute within an executive order, which would include the County order.  The court then analyzed the standards for a temporary injunction and held the trial court erred in denying the injunction.  Finally, the court concluded by stating how essential the role of a county judge is when managing disasters and emergencies and that their opinion should not be misunderstood. The Governor’s order only controls over conflicts, and any provision of the County order which can be read in harmony remains enforceable.

Justice Rodriguez’s dissent opined that the Governor exceeded the authority provided by the Disaster Act. In his view, “the Governor has taken a law that was meant to help him assist local authorities by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities as a bureaucratic obstacle to…”  a once-size-fits-all coronavirus response plan.

If you would like to read this opinion click here. The dissent by Justice Rodriguez is found here. Panel consists of Chief Justice Alley, Justice Rodriguez and Justice Palafox.  Opinion by Chief Justice Alley.

Austin Court of Appeals holds that under the Civil Service Act applied to police officers, a reinstatement list must factor in seniority in the position being demoted and not seniority in the department

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Bradley Perrin v. City of Temple, et al, 03-18-00736-CV, (Tex. App – Austin, Nov. 6, 2020)

This is an employment dispute in a civil service police department with crossclaims and a host of procedural matters. The Austin Court of Appeals ultimately held the Plaintiff was entitled to the promotional position of corporal.

Perrin and Powell were serving as police officers for the City and took the written examination for promotional eligibility to the rank of corporal.  Five officers passed, including Perrin and Powell. The results were publicly posted on a certified list with Powell being third and Perrin being fifth. Then, the Director added seniority points, but made Perrin third and Powell fifth. The City Defendants and Powell contend that the Director erred in adding the seniority points and did so incorrectly. However, before the list expired, the City eliminated four corporal positions and created two new lieutenant and two new sergeant classifications. The Chief sent out a memo stating the sequence of events should have resulted in the promotion of Officers Mueller, Perrin, Powell and Hickman to corporal, and then the immediate demotion back to the rank of police officer, and placement on a Re-Instatement List for the period of one year. The reinstatement list listed Powel higher than Perrin due to seniority points being included. Perrin sued the City Defendants for a list status higher than Powell under declaratory judgment and ultra vires claims.  The City Defendants counterclaimed, seeking declaratory relief that Powell was entitled to the promotion and Powell intervened. The trial court issued an order denying Perrin’s plea to the jurisdiction and motion for summary judgment and granting the City Defendants’ and Powell’s motions for summary judgment. Perrin appealed.

The court first held the legislature waived immunity for dissatisfaction with the grading in §143.034(a) of the Texas Local Government Code, which permits an “eligible promotional candidate” who is “dissatisfied” with “the examination grading” to “appeal, within five business days, to the commission for review.” To the extent that Powell is relying on the UDJA to challenge “the examination grading” such is precluded due to the redundant remedy doctrine. Powell’s ultra vires claim is not dependent on the remedies so is permitted to move forward for prospective relief only, but since Powell sought a reevaluation of the promotion list, that is not prospective. The trial court erred in granting Powell’s summary judgment for retrospective relief to alter the list. conclude that the City Defendants’ counterclaim requesting declaratory relief did not rise to a justiciable level and therefore the district court lacked subject matter jurisdiction over the counterclaim. It is the promotional eligibility list that provided the rights and status of the parties as to their initial promotion to corporal. Whether Perrin was erroneously placed ahead of Powell on the promotional eligibility list does not affect the rights and status of the parties under that list because, on this record, there is no mechanism by which the expired list may be retroactively amended.  By providing a unilateral right of review only to officers, the Civil Service Act is not thereby permitting a declaratory judgment action through which the City Defendants may challenge the decision of the Director in making the list.  However, for the reinstatement list, the context of the statute makes clear that the reinstatement list is created by the demotion of officers who have “least seniority in a position” and that the list “shall” be “in order of seniority.” The court determined that “seniority” in section 143.085(a) refers to seniority in the corporal position, not seniority in the Department.  So, when multiple individuals are promoted to open vacancies from a promotional eligibility list at the same time and then demoted at the same time, “seniority” for the reinstatement list is determined by the order of the promotional eligibility list.

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

The U.S. Fifth Court of Appeals held plaintiffs had standing to challenge zombie law provision in charter despite the election being over.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Joe Richard Pool, III, et al. v. City of Houston, et al., No. 19-20828 (5th Cir.  October 23, 2020).

In this appeal from a trial court’s dismissal of an election case.   The U.S. Fifth Circuit reversed the trial court’s dismissal and held that the plaintiffs had standing to continue the suit for future petitions.

The plaintiffs are petition circulators who attempted to circulate a petition in the city where they are not registered voters.  The city stated that it had a charter provision that required petitions to be circulated or signed by registered voters, but that they were going to look into the issue.  While the city was researching the issue, the plaintiffs filed suit in federal district. The district court held that the charter provision was unconstitutional and granted the temporary restraining order preventing enforcement.  After the petition period was over, the trial court dismissed the case as moot. The plaintiffs appealed. During the litigation, the city added an “editor’s note” to its charter that it would accept petitions from anyone and had a link to a new form regarding such.  The city argues that it will not be enforcing the provision and has approved a form and notation to that effect which should preclude a permanent injunction case.

When laws are deemed unconstitutional they are not always updated or removed from documents.  These are called zombie laws.  The Houston Charter has a provision that limits petition signers to registered voters.  This type of law was deemed unconstitutional in 1999 but was not removed from the city’s charter.  See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999).  In order to show standing to overturn such a zombie law, plaintiffs must show that they are “seriously interested in disobeying, and the defendant seriously intent on enforcing, the challenged measure.” Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014).  The Fifth Circuit held that it was clear that the plaintiffs would continue to try to submit petitions despite not being registered voters and that the city’s notation and form were insufficient to prevent enforcement.  The court held that the plaintiffs have standing and could continue their suit against the city for future petitions.

If you would like to read this opinion click here.   Panel consists of  Justices Graves, Costa, and Engelhardt. Opinion by Circuit Judge Gregg Costa.

 

U.S. 5th Circuit holds Plaintiff students established standing to assert University’s student speech policies on harassments and rudeness are unconstitutional

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Speech First, Inc. v. Fenves, 19-50529 (5th Cir. Oct. 28, 2020)

This is a First and Fourteenth Amendment free speech case in a university setting. The U.S. 5th Circuit Court of Appeals reversed the dismissal of the plaintiffs’ claims and reinstated the case.

Speech First, Inc., (“Speech First”) is an organization of free-speech advocates which brought suit on behalf of students at the University of Texas at Austin (“University”) challenging seven policies of the University. The policies prohibited obscenity, defamation, rude statements, “verbal harassment of another” with a very broad definition, a requirement that if a person demands the student to stop communicating with them the student must oblige,  and several others. The Dean of Students (Fenves) has primary authority and responsibility for the administration of student discipline. The trial court dismissed the claims due to a lack of standing. The Plaintiffs appealed.

In general, “‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’” so the fact the University amended its policies does not preclude the court from analyzing the original policies. Further, some of the definitions were not amended, thereby leaving the controversy live. Next, Because Speech First seeks a preliminary injunction on behalf of its members, it must clearly show that it likely has associational standing to bring its case on the merits.  Speech First has standing if any of its members have standing. The gravamen of Speech First’s claims is that its student-members wish to engage in robust debate on timely and controversial political topics from a contrarian point of view. Because their views do not mirror those of many on campus, their speech may be deemed “harassment,” “rude,” “uncivil,” or “offensive,” as those terms are defined in the University’s policies. The court has repeatedly held, in the pre-enforcement context, that “[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” Evidence supported that students “are afraid to voice their views out of fear that their speech” may violate University policies.  Further, terms like “harassment,” “intimidation,” “rude,” “incivility,” and “bias” beg for clarification as they are too broad and not sufficiently prescriptive. The prong requiring substantial threat of future enforcement to confer standing does not necessarily apply for a facial challenge, only an “as-applied” challenge. The dismissal is reversed and the case remanded to the district court for a reassessment of the preliminary injunction.   The court finally cautioned that “In our current national condition, however, in which ‘institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,’ courts must be especially vigilant against assaults on speech in the Constitution’s care.”

If you would like to read this opinion click here. Panel consists of Justices King, Jones and Costa. Opinion by Justice Jones.

14th District Court of Appeals holds all elements of a circumstantial-evidence retaliation claim (including pretext) are jurisdictional, plus court lacked jurisdiction over Plaintiff’s discrimination claim

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Margaret Fields v. Houston Indep. Sch. Dist., 14-19-00010-CV (Tex. App.—Houston [14th Dist.] Oct. 15, 2020)

This is an employment discrimination and retaliation case where the Houston Court of Appeals (14th Dist.) affirmed the granting of the school district’s plea to the jurisdiction.

Fields enrolled as a teacher intern in the Houston Independent School District (“HISD”) alternative-certification program as a means of becoming a full-time teacher for HISD.  An alternative-certification committee served as the final decision-making authority.  It reviewed and evaluated Fields, who had difficulty with performance.   After exhausting several performance enhancement plans, the committee dismissed Fields from the program.  After receiving her right to sue letter, Fields sued for discrimination and later retaliation. HISD filed a plea to the jurisdiction, which was granted. Fields appealed.

The Fourteenth Court of Appeals first held Fields’ retaliation charge was factually related to her discrimination charge. Therefore, even though Fields did not file or amend her discrimination charge to include retaliation, she was not required to in order to bring suit.  Next, the court recognized NISD presented evidence of legitimate, non-discriminatory reasons for the discharge, which Fields was unable to rebut to establish pretext under her discrimination charge. Fields then argued her retaliation charge should stand because she is not required to establish pretext as a jurisdictional requirement because the jurisdictional requirement applies only to a prima facie case.   The court disagreed. When an employer presents jurisdictional evidence rebutting the prima facie case, the presumption of retaliation disappears.  The employee must present sufficient evidence of pretext to survive a plea to the jurisdiction.  All elements of a circumstantial-evidence retaliation claim are jurisdictional. Because Fields failed to present any evidence of pretext on the part of HISD, she failed to establish a waiver of immunity.  As a result, the plea was properly granted.

If you would like to read this opinion click here.  Panel consisted of Justices Tracy Christopher, Ken Wise, and Jerry Zimmerer.  Opinion by Justice Jerry Zimmerer.

 

 

Property owner failed to allege Ch. 211 or 245 claims for zoning change; failure-to-exhaust-remedies bar applied to inverse-condemnation claim

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City of Dickinson v Stefan, 14-18-00778-CV, (Tex. App. – Houston [14th Dis.], Oct. 27, 2020)

Stefan operated his home computer business in a residential zone, but allowed his church group to host events, including weddings on the property.  The City changed later changed the zoning code and created a registration process for non-conforming uses. The registration allows a property owner to continue the same nonconforming use after the City adopted the change but the owner cannot expand the nonconforming use. Stefan registered his home computer business but did not list any church activities. Stefan did not write “events,” “wedding venue,” “event center,” or anything else that would indicate he had been using the Property for events.  Neither party produced evidence the City approved the request. Stefan was later cited for operating a special event center against the zoning code without a special use permit. Stefan appealed to the Board of Appeals, which denied his request to operate special events. Stefan then sued the City for declaratory relief claimed inverse-condemnation.  The city filed a plea to the jurisdiction, which was denied. The City appealed.

The Court first held that Stefan failed to allege a vested right determination under chapter 245 or a board of adjustment appeal under chapter 211 of the Texas Local Government Code. The operation of an ongoing business is not a “project” within the meaning of chapter 245. Rights to which a permit applicant is entitled under chapter 245 accrue on the filing of an original application or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought.  Stefan’s pleadings do not mention chapter 245 or a vested right. Stefan does not cite § 211.011 or seek a writ of certiorari for a BOA appeal. He sued the City, not the BOA. As a result, he failed to seek judicial review of the BOA decision. The City challenged jurisdiction for the declaratory judgment and takings claims for failure to timely appeal the City Board of Adjustment determination and that Stefan did not exhaust his administrative remedies regarding nonconforming uses. Even under a liberal construction of the pleadings, the court cannot create a claim Stefan’s pleading did not contain, and it could not conclude that Stefan sought judicial review of the BOA decision under chapter 211. The exhaustion-of-administrative-remedies rule requires that a plaintiff pursue all available remedies within the administrative process before seeking judicial relief. Chapter  211 must be exhausted before a party may seek judicial review of a determination made by an administrative official. As a result, the trial court lacked jurisdiction over his declaratory claims and inverse-condemnation claims.

The concurrence believed Stefan’s failure to allege 211 should not preclude consideration, but then held Stefan abandoned that consideration in his briefing.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost and Justices Wise and Hassan (Hassan, J. concurring – opinion found here).

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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

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

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

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

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

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

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

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