Corpus Christi Court of Appeals holds recovery in breach of contract case under Chapter 271 waiver of immunity dependent on contract definition of “owner” – attorney’s fees are recoverable for any contract covered by Chapter 271 waiver.

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Special guest author Laura Mueller, City Attorney of Dripping Springs

City of Corpus Christi v. Graham Constr. Servs., Inc., 2020 WL 3478661, No. 13-19-00367-CV (Tex. App.—Corpus Christi June 25, 2020) (mem. op.).

This is a breach of contract claim under Chapter 271 of the Local Government Code involving a wastewater plant replacement project where the Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

The City of Corpus Christi (City) entered into a contract with Graham Construction Services (Graham) for the replacement of a wastewater plant.  In the agreement, the City hired Carollo to provide engineering and contract administration services and Carollo was considered the owner’s representative.  The agreement had strict deadlines for the completion of the project in two different phases.  The agreement also had strict notice of claim requirements (i.e. less than 90 days after claim event).  Graham submitted over a dozen delay claims, arguing that it faced delays due to “unclear or conflicting specifications in the contract, unnecessarily burdensome testing requirements, and an uncooperative and obstructionist attitude on the part of Carollo”, but not within the time frames required by the agreement.  At some point, the City replaced Carollo with Freese & Nichols (Freese), but Carollo was still involved in the project.  Graham also submitted reports requesting an increase in price and extensions of the schedule.  The City reviewed the reports and met with Graham regarding these reports. The City refused to issue a certificate of substantial completion, and Graham left the job site.   Graham sued the City for breach of contract.  The City filed a counterclaim which included a third-party petition against Carollo.  Three years after the suit filing, the City filed a plea to the jurisdiction.  The trial court denied the plea as to the breach of contract and attorney fee claims and the City appealed.

Under Chapter 271 of the Texas Local Government Code’s waiver of immunity for goods/services contracts contract damages are limited to: (a) balance due including increased costs from owner caused delays; (b) change orders; (c) attorney’s fees; and (d) interest.  Id. § 271.153.  The chapter does not waive a contractor’s defense, but does require a contractor to comply with the adjudication methods found in the contract. Id. §§ 271.154; .155.  The City argued that it was not responsible for owner-caused delays because the delays were allegedly caused by Carollo, an independent contractor.  The Court held a fact issue exists because Carollo was listed as an Owner Representative in the agreement.  The Court also held (a) the City’s thirty and sixty-day notice of claim requirements are prohibited by § 16.071 of the Texas Civil Practice and Remedies Code; and (2) the City did not tell Graham it missed the notice of claim deadline but instead worked through the claim dispute.  These are permissible under § 271.155.  The Court compared this case to a recent contract case where the City did notify a contractor of the lateness of their claims.   See Mission Consol. Indep. Sch. Dist. v. ERO Int’l, LLP, 579 S.W.3d 123, 129 (Tex. App.—Corpus Christi–Edinburg 2019, no pet.).  Finally, the Court held that the contractor’s request for attorney’s fees was allowed because § 271.153 states that fair and equitable attorney’s fees are recoverable. The plea was properly denied.

If you would like to read this opinion click here.

 

 

Austin Court of Appeals holds junior college could not withhold school transcripts of two employees under the Texas Public Information Act

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Del Mar College District v Ken Paxton, 03-19-00094-CV (Tex. App. – Austin, July 1, 2020)

This is a Texas Public Information Act (“PIA”) case where the Austin Court of Appeals affirmed an order requiring the release of certain information possessed by the college district.

The Del Mar College District (“District”), a junior college district,  received a request for the personnel files of two professors.  The files contained their college transcripts. The District timely requested an opinion from the Attorney General’s office. The AG opined certain information could be withheld, but determined other information must be released, including the college transcripts. The District filed suit against the AG and the trial court heard opposing summary judgment motions. The trial court granted the AG’s motion and ordered the release of the transcripts. The District appealed.

The court listed a narrow legal question – was the junior college a “public school” for purposes of the PIA exception under §552.102(b)(which exempts such transcripts). The court held the proper inquiry was into the meaning of the phrase “public school,” which has its own generally accepted meaning, referring to the elementary and secondary educational system funded by the state. Junior colleges, in contrast, are part of the higher education system and charge tuition to their students. See Tex. Educ. Code § 130.084(b). “Public Education,” governs the State’s free elementary and secondary schools, while “Higher Education,” governs the State’s university and college system. The court acknowledged that junior colleges have been held to be integral to the Texas education system and could be a public school for other purposes, but noted it was not a “free” public school. Section 552.102(b) is part of the Public Information Act, not the Education Code, and is not part of the “general law governing the establishment, management, and control of independent school districts.” So, while the District is a public entity and a school subject to the PIA, it is not a “public school” for purposes of Section 552.102(b).  As a result, the college transcripts must be released.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Triana and Smith. Opinion by Chief Justice Rose.

Texas Supreme Court holds TTCA waives immunity for slight negligence claims, which applies to common carriers (buses) and imposes a higher degree of care for passengers

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VIA Metropolitan Transit v Curtis Meck, 18-0458 (Tex. June 26, 2020)

This is a Texas Tort Claims Act (TTCA) case involving a VIA bus accident where the Texas Supreme Court affirmed a jury award against VIA.

VIA Metropolitan Transit is a governmental entity that operates public transportation services in San Antonio and Bexar County. Curtis Meck boarded a VIA bus operated by Frank Robertson, who was new to the job and still in training. Robertson began to pull away from the stop when another passenger shouted “Back door!,” apparently to notify Robertson that a passenger was still trying to exit. Traveling just under five miles per hour, Robertson made an “abrupt stop,” causing Meck to fall forward into the partition behind Robertson’s seat. Meck asserts this caused a herniated disc in his neck. Mech sued VIA asserting negligence and asserted VIA was a “common carrier” with a high degree of care imposed for the benefit of the passengers. After a trial on the merits the jury found for Meck and VIA appealed. VIA did not object to the designation as a common carrier and did not object during jury selection when Meck’s attorneys told the jury of the higher duty imposed on VIA. VIA moved for a directed verdict asserting it was not a common carrier and the jury instruction was incorrect. The motion was denied.

Under the Texas Transportation Code, the duties and liabilities of a common carrier are the same as provided for under common law. Tex. Transp. Code §5.001(a)(1). A common carrier owes a duty to its passengers to act as “a very cautious and prudent person” would act under the same or similar circumstances.  To qualify as a common carrier (in contrast to a private carrier), the entity must provide transportation services to the general public, as opposed to providing such services only for particular individuals or groups and as its primary function. VIA argued it is not a common carrier because (1) it is not “in the business” of providing such services, (2) providing such services is not its “primary function,” and, (3) in any event, it cannot be a common carrier because it is a governmental body that performs only governmental functions.  While the Court agreed that VIA is statutorily prohibited from generating revenue greater than an amount “sufficient to meet [its] obligations,” it disagreed that profit is necessary to qualify for the “in business” designation. The  Court held VIA was indisputably in “the business of transporting people” and therefore met the first prong. And while VIA argued it performs numerous governmental functions that include constructing roads, issuing bonds, collecting taxes, and promoting economic development, for the purpose of “implementing the State’s transportation policy”, the Court held it must only do so to fulfill its obligation to operate as a “rapid transit authority.”  As a result, transporting people is its primary function. The Court agreed that VIA is a governmental entity and that it was performing governmental functions that provided, by default, governmental immunity. However, that status does not prevent it from being a common carrier with a higher degree of care to its passengers. The Court further declined to change the law by requiring a lower, ordinary standard of care. The Court then held the TTCA does not define what type of negligence is subject to the waiver of immunity. However, the common law has long used the term “negligence” to refer to “three degrees or grades of negligence,” including gross negligence, ordinary negligence, and slight negligence (which applies to common carriers).  As a result, all three types are subject to the waiver in the TTCA. Finally, the Court held the evidence was legally sufficient to uphold the jury award.

Chief Justice Hecht wrote a concurring opinion noting the “slight negligence” or “high decree of care” standards are misleading, unnecessary and should be abandoned. They suggest that common carriers are to “exercise all the care, skill, and diligence of which the human mind can conceive” and invites the jury “to scrutinize the carrier’s conduct in an endeavor to find it defective.”  However, he notes that given the evidence, an instruction on a “reasonable care” standard would not have changed the outcome.

If you would like to read this opinion click here. Justice Boyd delivered the opinion of the Court, in which Justice Green, Justice Lehrmann, Justice Blacklock, and Justice Busby joined. Chief Justice Hecht delivered a concurring opinion, in which Justice Guzman, Justice Devine, and Justice Bland joined.

Paying for train ticket is not the same as paying for use of train station under TTCA premise defect claim says 5th Court of Appeals

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Special guest author Laura Mueller, City Attorney for Dripping Springs

City of Dallas v. Kennedy, No. 05-19-01299-CV (Tex. App.—Dallas June 13, 2020) (mem. op.)

This is a slip and fall/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals reversed and rendered on the trial court’s denial of the City’s plea to the jurisdiction.

Vernell Kennedy injured herself when she fell at the City of Dallas’ Eddie Bernice Johnson’s Union Station by tripping on a broken area of tile.  She had traveled by Amtrak train from Kilgore to Dallas before using the Station and had purchased her train ticket in Longview.  She sued the City for failing to repair the floor or warning of the dangerous condition.  The City filed a plea to the jurisdiction claiming that it was protected by governmental immunity on the basis that Ms. Kennedy was a licensee, not an invitee because she did not pay to use the train station.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

Under the Tort Claims Act, a city owes “owes to the claimant only the duty that a private person owes to a licensee on private property,”  Tex. Civ. Prac. & Rem. Code § 101.022.  The duty to a licensee regarding premises defects is to warn of premises defects that the entity has actual knowledge of.  If someone pays for the use of property, the claimant becomes an invitee and the city’s duty to protect the individual from harm is elevated to warning the individual of dangers the person knew or should have known of.  The plaintiff in this case argued that she was an invitee because she had paid to ride the train to the station. The court of appeals disagreed.

“A fee must be paid specifically for entry onto and use of the premises” to change a plaintiff to an invitee.  City of Dallas v. Davenport, 418 S.W.3d 844, 848 (Tex. App.—Dallas 2013, no pet.)(holding that paying for a plane ticket did not make a person an invitee when injured on airport property); but see City of Fort Worth v. Posey, 593 S.W.3d 924, 929 (Tex. App.—Fort Worth 2020, no pet.).  Because Kennedy had purchased only a train ticket, and no payment was made to use the station itself, she was a licensee and the city only owed her a duty to warn her of dangers of which the city had actual knowledge.  Actual knowledge of the danger in this case was not established by Kennedy, because there were no reports on file at the city that the danger existed.

If you would like to read this opinion click here.

Whistleblower Act report qualified even though the chief already knew about the alleged regarding the violation of law.

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Special Guest Author, Laura Mueller.

City of Fort Worth v. Pridgen, et al., No. 05-18-00652-CV (Tex. App.—Dallas June 18, 2020) (mem. op.).

This is a Whistleblower Case (Texas Government Code Chapter 554) where the Dallas Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

In a well-publicized, police use of force case, an officer, Martin, was seen on Facebook Live and on his body camera footage using force against individuals while arresting them.  Due to the incident, claims of racism were made by the public against Officer Martin, and the incident was investigated by the two plaintiffs, high ranking members of the City of Fort Worth Police Department, Pridgen and Keyes.  After reviewing the footage, these officers reported to the Police Chief, who was aware of the incident, and the officers recommended that Officer Martin be terminated.  The Chief instead only suspended the officer for ten days.  Both Pridgen and Keyes were demoted after the investigation due to the allegation that the officers release confidential information to the victims’ attorney without the city’s authorization.

Under the Whistleblower Act, immunity from suit is waived when the city employee shows that:

(1) that the plaintiff was a public employee, (2) that the defendant was a state agency or local government, (3) that the plaintiff reported in good faith a violation of law (4) to an appropriate law enforcement agency, and (5) that the plaintiff’s report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex. App.—Dallas 2008, no pet.).

Good faith in this context requires that the employee must have believed that he was reporting a violation of law and this determination must be reasonable based on the employee’s training and experience.  To be a but-for cause of an employee’s demotion, the report must have been a reason, but is not required to be the sole cause of the adverse employment action.  The issues in this case was whether: (1) it is a report of a violation of law if the person to whom they report to already knows of the violation of law; (2) that the report was not made in good faith; and (3) the report was not the cause of the officers’ demotions.

The court held that a report can be sufficient under the Whistleblower Act even if the appropriate law enforcement agency to whom it is reported already knows of the violation, in this case the report to the Chief was sufficient even though the Chief was aware of the officer’s investigation and was familiar with the facts that led to the allegations.  The court also held that the officers made their report in objective good faith even if there was other evidence that may have negated the violation of law that they could have viewed but did not.  There is no duty for an employee to investigate a violation of law before reporting it for Whistleblower Act purposes.  Finally, the court held there was a sufficient nexus between the officers’ demotions and the report of violations of law based on the Chief’s negative attitude towards the report and the evidence of inconsistencies in the investigation and discipline of the officers.

If you would like to read this opinion click here.

San Antonio Court of Appeals holds because officer’s affidavit was too sparse to establish a proper lookout trial court properly denied the plea to the jurisdiction

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City of San Antonio v Huron, 04-19-00570-CV (Tex. App. – San Antonio, June 11, 2020)

This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

David L. Arredondo was struck and killed by a San Antonio Police Department (SAPD) vehicle when Arredondo was riding his bicycle.  Arredondo failed to stop at a stop sign, and he rode across the unlit intersection. The City sent investigators and a supervisor to the scene, and the driver/officer gave a statement regarding the accident. The investigators took photographs and videos, collected evidence, and filed their reports.  No formal written notice of claim was filed, but just over thirteen months after the accident, the family filed suit.  The City asserted its immunity from suit for lack of formal or actual notice.  The family asserted the City had actual notice due to the investigation and reports.    The plea was denied and the City appealed.

“[A]ctual notice exists only when the governmental unit has ‘knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.’”  “[S]ubjective awareness of alleged fault requires neither adjudication of liability nor confession of fault.”  But a governmental unit’s subjective awareness of its potential fault is not enough to establish actual notice. The investigation reports, prepared by an SAPD investigator, identifies the officer driving the SAPD vehicle, the decedent, the location, and other facts pertaining to the accident.  The only finding of fault in the Texas Peace Officer’s Crash Report points to Arredondo.  Neither of the two CSI reports gave any indication of fault by any party, and the court expressly did not infer that the City gained any subjective awareness of its alleged fault merely because it conducted an extensive investigation. It is the facts disclosed in the investigation, not the breadth of the investigation alone, that inform the actual notice question. The driving officer’s report, however, was very sparse and noted “I was traveling [southwest] in the #1 lane of Somerset [Road], when I felt something strike my vehicle. I immediately noticed my windshield was damaged and [I] came to an immediate stop.”  All persons have the duty to maintain a proper lookout and to observe in a careful manner the traffic and the general environment at and in the vicinity of an intersection. The officer’s affidavit was so sparse, it did not establish he was maintaining a proper lookout. He does not list his speed at the time of the accident or much of anything else. From this evidence, the trial court could have found that the officer did not see Arredondo and it could have concluded that the officer was failing to keep a proper lookout in violation of his duty.  As a result, the plea was properly denied. [Comment: This opinion appears to be inconsistent with the burdens attributed to the parties during a plea as the opinion does not go into what evidence was present in response to the plea to establish a failure to keep a proper lookout. The court seems to treat the absence of evidence as a proper submission of contradicting evidence to make an implied finding by the trial court.]

If you would like to read this opinion click here. The panel consists of Justices Alvarez, Chapa and Rios.  Opinion by Justice Alvarez.

Austin Court of Appeals holds no vested rights for zoning changes related to square foot of use ratio

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River City Partners, Ltd. V City of Austin, 03-19-00253-CV (Tex. App. —  Austin, June 4, 2020).

This is a vested rights/Chapter 245 challenge suit where the Austin Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

In 1986, River City’s predecessor in title applied to rezone the property to the Community Commercial classification and the  City approved with some conditions.  In April 2003, the property owner applied to the City for approval to create an eight-lot commercial subdivision.  While the application was pending the City passed its zoning ordinance.  The City then approved the plat.  Fast forward to 2017, aware that its plans exceeded the zoning ordinance limits on use size in relation to the building, River City sought an exemption on the ground that the ordinance conflicted with the 1986 Covenants. When the City denied the request, River City Partners sued for declaratory and injunctive relief asserting the City must apply the regulations in effect at the time of the application. The City filed a plea to the jurisdiction which was granted.  River City Partners appealed.

Under Chapter 245 of the Texas Local Government Code, a vested right will attach to a project rather than a permit holder and follow any conveyances or transfers of rights related to the project. River City’s as-applied challenge is consistent with parts of Chapter 245 that apply on a project-by-project basis.  However, Chapter 245 “does not apply to,” municipal zoning regulations unless they affect certain categories, including building size.   Section 245.004 also does not employ similar language or even include the term “project” so the project-based analysis is not applicable. So, the question becomes does the restriction qualify as a zoning regulation on “building size.” The court interpreted the LDC provisions as they applied to the entire code and not simply in isolation.  The City’s LDC required that uses not exceed a certain ratio of gross floor area to gross site area. However, the LDC does not prohibit multiple uses within the same building and therefore River City failed to establish the LDC affected building size, only use size. Since Chapter 245 only waives immunity for applicable vested rights, and River City failed to establish a possible vested right, the trial court was without jurisdiction. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, and Justices Triana and Smith.

Texas Supreme Court holds contractor entitled to derivative immunity for conspiracy claims, but not fraud claims

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GTECH Corp v. Steele, et al, 18-0158 (Tex. June 12, 2020).

In this case, the Texas Supreme Court held a contractor providing certain functions of the Texas Lottery Commission was not entitled to derivative sovereign immunity.

GTECH provided instant ticket manufacturing and services to the Texas Lottery Commission.  GTECH was sued by multiple plaintiffs (in multiple suits alter consolidated on appeal) alleging that the instructions on a scratch-off lottery ticket were misleading, causing them to believe they had winning tickets when they did not.  GTECH created draft tickets, which the TLC commented on and made changes, but ultimately approved after the back-and-forth concluded. After several complaints, the TLC shut down the game within 60 days of its release.  The plaintiffs asserted claims for fraud, fraud by nondisclosure, aiding and abetting fraud and conspiracy.  GTECH filed pleas to the jurisdiction, asserting it was entitled to the same immunity held by the Lottery Commission. Due to the multitude of suits, some pleas were granted, some denied, but all ended up on appeal.

The Court first noted it had not yet had the opportunity to address whether a Texas government agency’s immunity from suit might extend to its private contractors and if so under what circumstances. In the instances of derivative immunity, it only applies  to a private company operating “solely upon the direction” of a government, and exercising “no discretion in its activities,” was “not distinguishable” from the entity such that “a lawsuit against one [was] a lawsuit against the other.”  Here, the contract required GTECH to provide suggested game designs. After receiving approval from the Lottery Commission, GTECH provided drafts and received comments. GTECH’s role also included crafting, designing, and choosing wording. The Commission’s instant product coordinator testified he would expect GTECH to notify the Commission if it saw concerns with a game, including misleading instructions.  Based on the contract and other evidence in the record, the Court held GTECH had some discretion with regard to the conduct at issue.  The Court held that close supervision and final approval of work over which a contractor has discretion are not the same as the government specifying the manner in which a task is to be performed. Importantly, the Court stated “[t]hus, even if we recognized derivative sovereign immunity for contractors, GTECH would not be entitled to immunity from suit on the fraud claims under the control standard.”  This seems to indicate the issue of derivative immunity for contracts with state agencies remains an open question. The Court also stated “[a] challenge to an element of a plaintiff’s claim by a defendant who lacks immunity from suit does not implicate the jurisdiction of the court; it should be raised in a motion for summary judgment rather than a plea to the jurisdiction.”  Finally, the majority held that extending immunity to contractors for fraud could not further the purpose of immunity.   However, the Court did say that GTECH WAS entitled to derivative immunity from the allegation of conspiracy and aiding and abetting because such claims require a finding of the underlying fraud claim being viable against the TLC.  Since the TLC has immunity from fraud claims, the conspiracy and aiding and abetting claims cannot be sustained against GTECH.

Chief Justice Hecht’s concurring in part and dissenting in part opinion notes that he believes since the ultimate decision and approval of the final ticket form rested with the Commission that GTECH should have been provided immunity as to the fraud claims. He stated “Today’s lesson is that if the government acts only through its own employees, it is immune from suit, but if it consults experts before it acts, it is still immune from suit but the experts are not, except that the experts are immune from suit for helping the government defraud but not for giving the government advice that it uses to defraud. And there you have it.”  He agreed GTECH was immune from the conspiracy and aiding and abetting claims.

Justice Boyd’s opinion essentially stated his opinion is that “the simple and logical conclusion” is simply that sovereign immunity only protects the sovereign, no one else. He clarified that this does not affect his opinion on official or qualified immunity which applies to individuals.

If you would like to read this opinion click here.  Opinion by Justice Busby. Chief Justice Hecht delivered an opinion concurring in part and dissenting in part. Justice Boyd delivered an opinion concurring in part and dissenting in part.

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals

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Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

The Uniform Declaratory Judgment Act not allowed where plat does not show ownership interest to establish standing

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Korr, LLC. v. County of Gaines, No. 11-18-00130-CV (Tex.App.– Eastland May 29, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

 The case involves a claim under the Uniform Declaratory Judgment Act (UDJA) for an interpretation of a county regulation dealing with plats.  The court of appeals held that the UDJA cannot be used if there is no ripe injury.

Korr, a land developer in the county,  filed suit against the county under the UDJA based on a county regulation that requires a bond to cover the cost of electrical infrastructure prior to a plat being reviewed.  Korr argued that the provision was preempted by the Public Utility Commission’s authority.  Korr presented a plat that had already been approved and indicated but did not state that Korr had an interest in this and other properties in the county. The County filed a plea to the jurisdiction, which was granted. Korr appealed.

Korr presented no proof of Korr’s land ownership in the county, no active plat applications before the county and the listed plat had not required such a bond.  Korr argued that despite having a ripe injury, the UDJA should still allow the suit, because it wished to develop property in the future. The court of appeals reviewed the requirements for standing in a UDJA claim, including the ripeness of a controversy.  The court held that a ripe controversy is still required and noted Korr’s arguments in the trial court were all based on “hypothetical” situations.  The court held that it could not issue an advisory decision and affirmed the trial court’s dismissal.

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

Proof of allowing the provision of alcohol to a minor in an officer’s presence is sufficient for a general discharge on an F-5 termination report

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McCall v. Hays County Constable Precinct Three, No. 03-18-00355-CV (Tex. App.–Austin May 21, 2020) (mem.op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

The case involves an appeal from an Administrative Law Judge (ALJ) ’s order sustaining an F-5 termination report issued by Hays County.  The court of appeals held that there was sufficient evidence that the ALJ’s order was supported by substantial evidence.

McCall was a volunteer deputy still in his probationary period when the Hays Constable Office began investigating him for disciplinary purposes.  McCall was engaged to and lived with a 19-year-old female, who filed a family assault claim against McCall.  While the Constable’s Office was investigating the assault charge for employment purposes, the officer conducting the investigation found evidence, including from conversations with McCall, that his fiancée had been given and consumed alcohol in his presence.  Based on providing alcohol to a minor, McCall was terminated and provided an F-5 termination report with a general discharge notation.  McCall appealed the termination report to the State Office of Administrative Hearings, as required by the Occupations Code.  The Administrative Law Judge determined that there was sufficient cause for the general discharge notation.  McCall appealed.

First, the court looked at the Alcoholic Beverage Code provision that allows an underage person to drink in the presence of a parent.  In this case, the underage fiancée was drinking with McCall’s mother, not her own parent.  Because the underage fiancée is not under 18, McCall’s mother’s financial support of the underage fiancée did not create in loco parentis relationship.  Second, the court reviewed the argument there was insufficient evidence McCall provided or allowed his underage fiancée to consume alcohol.  The court reviewed the evidence under the substantial evidence standard and found that there was sufficient evidence for a general discharge, including McCall’s own statements related to his underage fiancée’s consumption of alcohol. Finally, the court reviewed the argument that Chapter 614 of the Government Code, which requires signed written complaints in order to terminate an officer, prohibits the submission of the evidence of alcohol consumption. While a family assault charge initiated the investigation, the reason for termination was evidence of allowing or providing alcohol to an underage individual.  The court did not hold that Chapter 614 could never limit what could be considered in an F-5 hearing, but that in this case, the evidence did not come from a complaint, but from the employer’s investigation of McCall’s own statements.  The court upheld the ALJ’s decision to uphold the general discharge based on substantial evidence of the appropriateness of the notation.

If you would like to read this opinion, click here. The panel consists of Justices Goodwin, Baker and Smith.

Possible suspension of officer’s license does not toll the statute of limitations for Sec. 1983 claims against an officer

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Haule  v.  Travis County and Spinner, No.  03-19-00250-CV (Tex.App.–Austin May 28, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

This case involves claims under §1983 and state law claims based on Haule’s attempt to report a crime to Travis County Officer Michael Spinner.  The court of appeals held that the statute of limitations had run against all of Haule’s claims.

Haule attempted to file a criminal complaint against the Caldwell County District Attorney based on a previous prosecution.  She called the Travis County Sheriff’s Office, claiming that the District Attorney had told her that he would put her in jail if she complained to the State Bar of Texas.  The Sheriff’s Office sent Officer Spinner to take her statement.  In his report, Officer Spinner referred to Haule as potentially mentally ill and intoxicated.  After Haule complained about Officer Spinner’s report, the Sheriff’s Office responded to Haule’s complaint in a letter stating that: (1) her claim was not sustained; (2) that the Travis County Sheriff’s Office did not have authority over the Caldwell County District Attorney; and (3) that she should contact the Caldwell County Sheriff’s Office or the Attorney General’s Office.  Seven years after receiving the letter from Travis County, Haule filed suit in Travis County District Court, alleging Section 1983 claims and general state law claims that appeared to include negligence, fraud, malicious prosecution, and defamation against Travis County and Officer Spinner.  The County filed a motion for summary judgment that the claims were frivolous, and the district court granted the motion.  Haule appealed.

The court of appeals reviewed all of the claims under each statute of limitations to determine whether any of the claims, even if substantiated, remained viable.  The court first discussed Haule’s briefing and noted that it was unclear that Haule’s claims were able to be pursued.  However, based on the information provided, the court reviewed the statute of limitations for §1983 claims, fraud, defamation, and others and determined that all of the statute of limitations had passed.  Haule argued that the statute limitations should be tolled because: (1) the report stating that she was mentally ill and/or intoxicated was “ongoing” and (2) Officer Spinner’s license was suspended during the period in question.   The court stated that the report was not ongoing and that even if Officer Spinner’s license had been suspended, it would not toll the statute of limitations. The district court’s judgment was affirmed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Rose, Justices Baker and Triana.

Slowing and visually observing stopped traffic was not reckless action for purposes of emergency responder doctrine of TTCA

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City of Kingsville v Dominguez, 13-19-00236-CV (May 28, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the Corpus Christi Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the plaintiff’s claims.

Dominguez alleged that Oscar Mendiola, while operating a City fire truck, failed to yield the right of way at a signal light which resulted in a collision with Dominguez’s vehicle. The record demonstrated the fire truck was traveling behind an ambulance and the truck’s siren and emergency lights were both activated.  Mendiola slowed as he approached, visually confirmed traffic had stopped, then proceeded.  According to the official accident report, the investigating officer concluded that the fire truck driver was facing a red light and failed to yield the right of way to Dominguez. The officer also concluded that Dominguez “disregarded an Emergency Vehicle while operating emergency lights.” The officer did not issue a citation to either driver. The City filed a plea to the jurisdiction based on the emergency responder exception of the TTCA. The plea was denied and the City appealed.

Part of the policy behind the emergency responder exception is because imposing “liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks” and would “allow for judicial second-guessing of the split-second and time-pressured decisions emergency personnel are forced to make.”  However, compliance with the requirements of Chapter 546 of the Texas Transportation Code does not relieve the driver of liability if they act recklessly (i.e., he understood the risks but did not care about the result).  The City argued Mendiola acted to minimize the risk to others as he entered the intersection, thereby demonstrating that Mendiola “clearly did care about the result” of his actions. Dominguez responds that Mendiola’s actions of entering the intersection against a red light without stopping were evidence of recklessness. The court held the fire truck driver slowed below the speed limit, visually confirmed stopped vehicles, had the lights and sirens on, and therefore did not act recklessly. As a result, the plea should have been granted.

If you would like to read this opinion, click here.

Texas Supreme Court holds a lack of immunity for coronavirus is not a “disability” for purposes of mail-in election ballots

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In re State of Texas, 20-0394 (Tex. May 27, 2020)

This is a mail-in ballot case. The great folks at the Texas Municipal League already summarized this case, and I try not to duplicate any summaries they beat me to. Their summary is found here and was issued May 28, 2020.

However, since not everyone may have seen the summary and it affects multiple entities, I’ve included this condensed version.

Essentially, the Texas Attorney General filed the lawsuit directly with the Supreme Court, seeking to prevent clerks and other election officials from allowing mail-in ballots for those fearful of contracting the virus responsible for COVID-19. Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances, one being the voter is disabled by statutory definition. The Court emphasized that it takes no side in what is the best policy, as that is for the Legislature. Its job is to interpret the language of the Election Code. Based on the language provided, the Court held  “…a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face.”  As a result, it declined to issue a mandamus against any officials, noting the Court was confident they would comply with the law in good faith, now that the Court has clarified the statutory language.

If you would like to read this opinion, click here. Chief Justice Hecht delivered the opinion of the court. Justices Guzman, Boyd and Bland delivered separate concurring opinions.

U.S. 5th Circuit holds statute of limitations was not jurisdictional, but trial judge should have reviewed matters raised at pretrial hearing under MSJ standards and dismissed the claims

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Bradley v. Sheriff’s Department St. Landry Parish, 18-30600, (US 5th Cir – May 7, 2020)

This is a §1983/malicious prosecution case where the U.S. 5th Circuit dismissed a defendant’s claims against the law enforcement and related officials who prosecuted him.

Bradley was arrested and charged with conspiracy to commit armed robbery.  He was arrested and housed in the St. Landry Parish Jail, then released that same day on bond.  After being released, he was detained in another jurisdiction under an unrelated offense. While under this second incarceration, he was transported back to the  St. Landry facility for one night so he could attend a hearing related to the conspiracy charge. He was later tried by a jury and acquitted four years later. Bradley sued the St. Landry Parish Sheriff’s Department and related officers alleging malicious prosecution, wrongful arrest and wrongful detention. The magistrate, sitting by consent, found he lacked jurisdiction to hear the civil suit and dismissed the claims based on the statute of limitations.

The U.S. 5th Circuit held the magistrate judge erred in concluding that, if Bradley’s § 1983 claims were barred by limitations, subject-matter jurisdiction over those claims was lacking. Section 1983 provides a federal cause of action but does not contain an express limitations period. The Supreme Court directs trial courts to look to state law personal injury claims for the limitations.  The court held that statutes of limitations of this nature are procedural, not jurisdictional.  However, while the magistrate may have had jurisdiction, the defendants raised the limitations defense in their pretrial order submission.  As a result, prior to going to trial, it was required for the trial judge to evaluate the claims under a summary judgment standard (noting the magistrate gave the parties notice and an opportunity to respond to his inquiry on limitations).  When a cause of action under § 1983 accrues is a question of federal law. For a false imprisonment claim, the accrual date begins when the imprisonment ceases. In Bradley’s case, the day as his arrest is the accrual date. Bradley’s wrongful arrest claim is barred by limitations, even if he contends that damages flowed from that false arrest until he was found not guilty.  Bradley’s brief does not cite decisions regarding limitations for post-process pretrial detention claims. As a result, the wrongful detention claims also were filed outside the limitations’ period. Since Bradley points to no concealment of fact, no tolling of the limitations applies. Suits brought under § 1983 require the deprivation of a right guaranteed under the United States Constitution.  The magistrate held that “[t]here is no constitutional right to be free from malicious prosecution,” and therefore Bradley “ha[d] no such federal claim.”  The court recognized that a malicious prosecution claim could be viable if it is linked to a specific constitutional right. However, Bradley does not articulate any such right or any link. Simply asserting he has a constitutional right to be free of malicious prosecution under the 5th and 14th Amendments are all conclusory assertions devoid of any specifics. Such is insufficient to establish a claim. Further, Bradley inadequately briefed his “malicious prosecution” claim.  In essence, the 5th Circuit held the trial court had jurisdiction but should have looked at the claims under a summary judgment standard, in which case, all federal claims would be dismissed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Owen, Justices Clement and Ho.