Fifth District Court of Appeals holds property owner’s pleadings adequately alleged waiver of immunity in sewer backup case due to overtaxed pumps

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The City of Blue Ridge v. Rappold, 05-19-00961-CV (5th Cir. Dec. 3, 2020) (mem. op.)

This is an interlocutory appeal from a denial of the City’s plea to the jurisdiction, in a sewage backflow case.

The Rappolds brought a claim under the Texas Tort Claims Act (“TTCA”), alleging that the City’s wastewater treatment facility (“WWTF”) failed in its operation, causing raw sewage and stormwater to cover portions of the Rappolds’ property several times over the course of three years.  The City requested discovery to which Rappold objected.  The trial court considered the plea prior to the City’s motion to compel discovery. The first sewage backup event was allegedly due to an electrical failure in the pumps while the remaining were due to high levels of rain creating too much waterflow for the pumps to handle. The plea was denied and the City appealed.

The court first held that identifying a specific person in the pleadings is not necessary to establish causation, only that a City employee acted negligently within the course and scope of their duties. It also disagreed with the City’s claim that the Rappolds’ claim indicates non-use and, similarly, fails to show operation. The court points to allegations that the City failed to properly maintain the WWTF and that the City’s employees were not using the WWTF as designed. These additional allegations created a sufficient nexus between the damage and the City’s actions to adequately allege that the City was negligently using the motor-driven equipment. Similarly, the City employees’ knowledge that the WWTF is unable to handle large amounts of water it receives at times indicates negligence in continuing to operate the pumps in such a condition. The court also found proper pleading of the “condition or use of tangible personal property”  as different components failed at different times.  Finally, it held that the Rappolds were able to properly plead a takings claim by alleging that the City’s knowledge of the WWTF’s inadequacy resulted in the City using the Rappolds’ land as an overflow depository.

If you would like to read this memorandum opinion, click here. Panel consists of Justice Molberg and Justice Carlyle. Memorandum opinion by Justice Carlyle.

Tyler Court of Appeals holds District is immune from sewer backup as 20 year old plastic coupler which failed was not part of the motor system

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Sean Self v. West Cedar Creek Municipal Utility District, 12-20-00082-CV, (Tex. App – Tyler, Jan. 6, 2021)

This is an appeal from the granting of a plea to the jurisdiction in a sewage backup case in which the Tyler Court of Appeals affirmed the order.

Self and his wife Kimberly entered into a contract with the District in 2012  water and sewer services. After sewage backed up into their home in April 2015, the District made some repairs to the vault system. Another backup occurred in 2016 and Sean Self sued the District alleging negligent use of motor-driven equipment, premises defect, unconstitutional taking, non-negligent nuisance, and breach of contract. The District filed a plea to the jurisdiction, which was granted. Self appealed.

It is undisputed that a plastic coupler (known as a quick connect) failed causing the backup. Self argued the motors, pipes and couplers are all one system. The court explained in detail how the Self system worked. The coupler gives District employees the ability to remove the pump without cutting pipes. There is no motor in the coupler. It merely assists in disconnecting the pump if it needs to be worked on. If the coupler fails, gravity will cause any sewage coming from a higher-grade property to backfill Self’s property. Self’s expert plumber testified the pumps used can cause high pressure, which could potentially break the coupler, but he did not know that is what occurred in this instance.  However, there was no evidence that the coupler assists in sewage collection other than to the extent it helps maintain the connection between the pump and the discharge line. The evidence shows that, if the coupler breaks, whether the pump is on or not, the sewage in the tank would flow out to the ground or through the line in the tank and back into the house, due to the force of gravity, not the operation or use of motorized equipment. Under a premise defect theory, the duty owed by an owner of premises to an invitee is not that of an insurer. The coupler was placed in 1995. The fact that materials deteriorate over time and may become dangerous does not itself create a dangerous condition, and the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. No evidence of actual knowledge existed. In the context of an inverse condemnation claim, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” A taking cannot be established by proof of mere negligent conduct. No knowledge of intent is present. While Self alleged a claim for non-negligent nuisance, there is no separate waiver of governmental immunity for nuisance claims. Finally, as to the breach of contract claim, no goods are services were provided to the District, it was the District providing services to Self. As a result, no waiver of immunity exists.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Affirmed. Opinion by Justice Neeley. Docket page with attorney information found here.

Second Court of Appeals holds general law city has inherent power to require solid waste haulers to obtain a license

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Builder Recovery Services LLC v. The Town of Westlake, Texas, 02-20-00051-CV,  (Tex. App. – Fort Worth, Jan. 1, 2021)(mem. op.).

This is a declaratory judgment/ordinance invalidation suit brought by a solid waste collector where the Fort Worth Court of Appeals affirmed the Town’s power to require licenses. [Warning, this is a long opinion at 56 pages].

BRS contracts with home builders in the Town of Westlake to remove the temporary construction waste that the builders generate and place a dumpster on the property during construction. The dumpsters are towed to each site and place as much as 20,000 pounds of weight upon the Town’s roads, with as many as ten visits to each site during construction. BRS initially raised concerns that the Town’s regular solid waste hauler (Republic) could not be the sole hauler for temporary construction waste. The city council delegated the Town’s staff to meet with the builders to discuss amendments to the Town’s ordinances in order to address the issue. The Town eventually passed an ordinance allowing third-party haulers like BRS to obtain licenses for temporary construction waste services in imposed certain regulations on the license. BRS brought suit asserting, among other things, that the license fee was not tied to actual administrative costs, that the ordinance was preempted by state law, and challenging the Town’s authority to pass the ordinance. After a bench trial, the trial judge found largely in favor of the Town but did invalidate the license fee calculation. BRS appealed.

The court first went through a detailed analysis of the power distinctions between general law cities and home rule cities. While the Town is a general law city, the court held it has the power to regulate solid waste collection under §361.113 of the Texas Health and Safety Code. The court rejected BRS’ argument that the section does not empower the Town to issue licenses as a license is an inherent part of the regulatory power.  Licenses are one means for a governmental agency to regulate activities that the Town is empowered to regulate. The court analyzed the various powers of the Town, including inherent powers and noted the power to regulate carries with it all means to accomplish the regulation, including licensing. Further, BRS failed to establish the ordinance was invalid because it failed to negate all conditions which would warrant the ordinance.  Further, such rules do not conflict with the franchise section of the same subtitle of the statute. Franchises and licenses are separate creatures. The court analyzed the wording of the various health and safety code sections and determined the power to license is not preempted by any other portion of the code. It held a “dumpster” is not the same as a “container” as that term is defined under the Solid Waste Disposal Act. The court determined the license fee issue was moot due to an amended ordinance.  However, due to an outstanding issue of attorney’s fees, the court remanded to the trial court for disposition.

If you would like to read this opinion click here. Panel consists of Justice Bassel, Justice Womack and Justice Wallach.  Memorandum opinion by Justice Bassell.

The Tenth Court of Appeals held immunity waived for airport lease based on improvements made by tenant

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Cleburne v. RT General, LLC, No. 10-20-00037-CV (Tex. App.—Waco  December 16, 2020) (mem. op.).

This is an interlocutory appeal from a trial court denial of the city’s plea to the jurisdiction on a breach of contract and related claims regarding an airport lease. The Waco Court of Appeals affirmed the denial.

The plaintiff sued the city after the city attempted to evict the plaintiff from the city’s airport under a lease agreement with the plaintiff.  The city and plaintiff entered into a lease agreement for airport facilities where the plaintiff could use the airport facilities at no charge for ten years because the plaintiff had expended over $300,000 in repairing the city’s airport facilities.  After the first ten years, the plaintiff was required to pay rent for use of the facilities.   Three years into the lease, the city sent a letter of eviction to the plaintiff, and the plaintiff sued the city for breach of contract, inverse condemnation, declaratory judgment, and fraud.  The city argued it had immunity from suit because the airport operation is a governmental function and the contract was missing an essential term, the rental payments for the first ten years.  The trial court denied the city’s plea to the jurisdiction.

Immunity is based on whether a function on which liability is based is a governmental or proprietary function.  Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 146 (Tex. 2018).  Operation of an airport is a governmental function.  Tex. Transp. Code § 22.021(a)(2).  Immunity from a governmental function can be waived by a contract claim if the contract falls within the provisions of Chapter 271 of the Local Government Code including stating the essential terms of the contract.  Tex. Loc. Gov’t Code § 271.152.  While price is an essential term of an agreement, the court of appeals held that past consideration could meet this requirement.  The court of appeals also held that claims for declaratory judgment and inverse condemnation can move forward on the same set of facts because immunity is waived under breach of contract.

Chief Justice Gray dissented by footnote stating that there was insufficient evidence that goods or services were provided to the city under the lease agreement.  Chief Justice Gray would also render judgment on the other claims as they are creative pleading efforts that should be dismissed as attempts to avoid the governmental immunity issue.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by John Neill and Chief Justice Gray dissenting by footnote within the opinion.

 

The Eleventh Court of Appeals held that failure to monitor or provide medical care for an inmate who was injured in a county jail is insufficient to waive immunity under the Tort Claims Act.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

James Garms v. Comanche County, No. 11-19-00015-CV (Tex. App.—Eastland   December 18, 2020) (mem. op.).

In this appeal from a trial court’s judgment granting the city’s plea to the jurisdiction on a tort claims case, the Eastland Court of Appeals affirmed the trial court’s grant of the plea because injuries allegedly caused by failure to monitor or provide medical care is a nonuse of tangible personal property which does not waive immunity under the Tort Claims Act.

The plaintiff sued the county after he was injured in the county jail.   The plaintiff was an inmate in the county jail when he was injured.  He had informed the jail staff that he felt unwell and his blood pressure was checked.  Despite a high blood pressure reading, the duty nurse was not notified and the plaintiff was not monitored.  The plaintiff lost consciousness and sustained a serious head injury.  The plaintiff was left unattended with a serious head injury which caused further issues.  The plaintiff sued the county for negligence caused by a faulty motorized camera and failure to monitor and provide medical care to the plaintiff. The trial court granted the county’s plea to the jurisdiction.

Immunity from a governmental function can be waived under the Tort Claims Act if the injury is caused by: (1) the operation or use of motor-driven equipment; or (2) use of tangible of personal property.  Tex. Civ. Prac. & Rem. Code § 101.021.  The plaintiff must also show a nexus between the injury and the uses listed in the Tort Claims Act.  LeLeaux v. Hampshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).  Claims based on inaction of government employees or nonuse of tangible property are insufficient to waive immunity under the Tort Claims Act.  Harris Cty. v. Annab, 547 S.W.3d 609, 614 (Tex. 2018).  The court of appeals held that the claims for failure to monitor or provide medical care did not waive the county’s immunity.  The court of appeals upheld the trial court’s grant of the city’s plea to the jurisdiction.

If you would like to read this opinion click here.   Panel consists of Chief Justice Bailey and  Justices Trotter and Wright. Opinion by Justice W. Stacy Trotter.

 

First Court of Appeals holds transporting patient to hospital was Texas Medical Liability Act claim, but passenger’s claim was proper under TTCA

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City of Houston v. Najla Hussein and Asha Obeid, No. 01-18-00683 (Tex. App. — Houston November 19, 2020) (mem. op.).

This is a case involving the interplay between the Texas Tort Claims Act (“TTCA”) and Texas Medical Liability Act (“TMLA”) stemming from a single motor vehicle collision. The City appealed the trial court’s order denying its motion for summary judgment and its motion to dismiss the negligence suit brought by plaintiffs, Najla Hussein and Asha Obeid.

Hussein’s mother, Obeid, was suffering chest pain and called 911 in response. First responders arrived and placed Obeid in the ambulance and began to transport Hussein and her mother to a hospital.   Mid transport, Obed made a request to be transported to a different and specific hospital. In response to her request, the ambulance exited the tollway and while driving through a narrow toll booth, the left and right sides of the ambulance struck the booth allegedly causing injuries to Obed and her daughter. Plaintiffs filed suit alleging the negligent operation of a motor vehicle. The city filed a motion for summary judgment asserting the application of the TTCA’s “emergency responder exception” while also moving to dismiss their claims arguing that they constitute health care liability claims under the TMLA.  The trial court denied both motions.

In considering the City’s motion to dismiss under the TMLA, the court of appeals determined that Obed’s claim constituted a health care liability claim, and as such, was required to submit an expert report, with a curriculum vitae for the expert whose opinion is offered, on a defendant physician or health care provider within 120 days of the filing of the City’s answer. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), 74.351(a),(b). As no expert report was submitted, the court dismissed Obed’s claim with prejudice, reversing the trial court’s judgment. However, the TMLA claim related only to the mother (Obed) who was receiving treatment, not to Hussein.  As to Hussein’s claim for personal injuries under the TTCA, the emergency responder exception requires the driver to be responding to an emergency.  While lights and sirens were used when traveling to Obed’s location, her EKG was normal, and no lights and sirens were on when he impacted the toll barriers. As a result, a fact question exists on whether an emergency existed.

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

The Tenth Court of Appeals affirmed the trial court’s summary judgment against the plaintiff developer because it did not challenge all possible grounds supporting the summary judgment order

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

David A. Bauer, et al. v. City of Waco, No. 10-19-00020-CV (Tex. App.—Waco  December 9, 2020) (mem. op.).

The Waco Court of Appeals affirmed a trial court’s judgment dismissing the plaintiff’s vested rights and takings claims on summary judgment.

The plaintiff developer sued the city after being required to provide an easement for a water line and meet other requirements in the city’s code prior to construction of its project.  The city required changes to various permit applications of the plaintiff prior to approval and required an easement for a previously placed waterline. The plaintiff developer sued the city for vested rights and takings, arguing the regulations were inapplicable due to the vesting of its original permit.  Among its summary judgment arguments, the City argued that a declaration of the plaintiff’s vested rights would not resolve the issue because the ordinance in place at the time of initial permit vesting would yield the same result.  As to the required easement, the City argued that the plaintiff did not seek a variance from the easement and could not claim a taking.  The trial court granted summary judgment in favor of the city but the order did not provide specific reasons.

To appeal a summary judgment, the appealing party has to prove that any or all bases for the summary judgment is error.  Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Lesher v. Coyel, 435 S.W.3d 423, 429 (Tex. App.—Dallas 2014, pet. denied). To establish a claim for vested rights under Chapter 245 of the Local Government Code the plaintiff needs to show that the city is required to review a permit application based on the regulations in effect at the time the original application is filed.  See Tex. Loc. Gov’t Code § 245.002; Milestone Potranco Dev., Ltd., v. City of San Antonio, 298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied).  For a takings claim, the plaintiff needs to show that the action where the property was taken was done without consent of the property owner and that there has been a final decision regarding the application of the regulations to the property at issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998). The court of appeals upheld the trial court’s judgment on both the vesting rights and takings claims because the plaintiff failed to disprove every basis for the summary judgment including that the ordinance in effect for vesting would not have changed the result and that the original property owner had given consent for the installation of the water line.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Chief Justice Tom Gray.

 

Third Court of Appeals holds church’s motion for new trial in water rate EDJA case held valid given unique and troubling circumstances in case

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City of Magnolia v Magnolia Bible Church, et al., 03-19-00631-CV (Tex. App. – Austin, Dec. 18, 2020)

This is an interlocutory appeal from an order granting a new trial and denying a plea to the jurisdiction in a water rate case in which the Austin Court of Appeals affirmed the granting of new trial and the denial of the City’s plea.

This case involves the interplay between the provisions of the Expedited Declaratory Judgment Act (“EDJA”)(which deals with public securities), the Texas Rules of Civil Procedure, and the constitutional principles of due process. The City adopted an ordinance relating to the City’s water-system rates. In addition to residential and commercial accounts, the ordinance created a new category of water user, the “Institutional/Non-Profit/Tax-Exempt accounts,” which, among others, covered churches.  The Churches opposed the new category and surcharge as being discriminatory under the Tax Code and the Texas Religious Freedom Restoration Act (“TXRFRA”).  The City preemptively filed a validation suit under the EDJA to validate the bonds and rates tied to the bonds, but only notified the public through newspaper publications. It did not expressly notify the church of the suit. The trial court granted the City’s validation of the rates. The Church later filed a regular Uniform Declaratory Judgment Act (“UDJA”) claim asserting the rates were discriminatory. When the City informed the Church of the final judgment under the EDJA claim, the church filed a motion for new trial in the EDJA trial court (under Tex. R. Civ. P. 329). The City filed a plea to the jurisdiction asserting the trial court lost plenary power over the case.  The trial court denied the plea and granted the motion for new trial. The City appealed.

Chief Justice Rose held that due process does not require personal service in all circumstances, but any use of substituted notice in place of personal notice—e.g., notice by publication—must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Notice by publication is insufficient when the name, address and interest are known.  The EDJA empowers an issuer of public securities to seek an expedited declaratory judgment concerning “the legality and validity of each public security authorization relating to the public securities,” including, as relevant here, the legality and validity of “the imposition of a rate, fee, charge, or toll.” Tex. Gov’t Code § 1205.021(2)(E). Ordinarily, notice by publication satisfies due process as to the parties bound by an EDJA judgment because the EDJA permits only in rem declarations concerning property rights and is notice to the public. However, in this case, the church challenged the application under religious freedom grounds.  Due process, therefore, requires more than notice by publication. Because notice to the Churches was constitutionally insufficient, the resulting judgment was void and can be challenged at any time. Justice Trianna took a slightly different approach, using the text of the EDJA and holding that it does not conflict with Rule 329 (allowing a new trial for persons who did not receive notice) and Rule 329 extends the plenary power of the court for a certain period of time.  Since the Church met the time periods under Rule 329, it was within the trial court’s discretion to grant or deny the motion or new trial.

Justice Baker’s dissent holds that such an interpretation undermines the intent of the EDJA which is to quickly decide the issue then preclude future claims from any other person who challenges the rate and bond applications.   He asserts Rule 329 only applies when a defendant (not an interested person) does not appear after service by publication.

If you would like to read the various opinions, Chief Justice Rose’s concurring opinion is here, Justice Trianna’s concurring opinion is here, and Justice Baker’s dissent is here.

U.S. 5th Circuit held reasonableness of an ADA accommodation request is normally a fact issue plus alleged discrimination is not enough for discriminatory firing claim under ADA

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Jones v. Lubbock County Hosp. Dist., 19-11364, 2020 WL 6787549, at *1 (5th Cir. Nov. 18, 2020)

 This is an interlocutory appeal of a granting of summary judgment for the University Medical Center (“UMC”) and appealed by its former employee, Ricky Jones. The U.S. 5th Circuit affirmed in part, vacated in part, and remanded in part.

Jones, a respiratory therapis, has breathing problems and relies on supplemental oxygen. He requested UMC to accommodate his condition by letting him wear a portable oxygen device while working, but UMC denied the request. Subsequently, Jones took a few weeks of leave after working for a few days with his supplemental oxygen device, applied for, and was offered a secretarial position with UMC. Jones denied the offer after he returned from leave and felt he could without his device. Jones again requested the use of the device, was denied, then took a few weeks of leave. During that time, he sought other work around UMC but found no opening. After a third request was denied, he put in his two weeks’ notice and resignation. During the two weeks, Jones was fired for sending messages which violated UMC’s policy against gossip. Jones filed suit. UMC filed a motion for summary judgement which the trial court granted. Jones appealed.

The Fifth Circuit vacated the lower court’s ruling, stating that whether a proposed accommodation is reasonable is generally a fact issue and that Jones showed a triable fact issue in how he and UMC interpreted his request.  However, for Jones’ discrimination claim, the Fifth Circuit held that the evidence of UMC’s alleged failure to accommodate did not offer evidence to connect it to his being fired. UMC was able to show a legitimate reason for Jones’ firing which Jones failed to rebut.  As a result, the discrimination claim remained dismissed but the failure to accommodate claim was remanded.

If you would like to read this per curiam opinion click here. Panel consists of Judge Stewart, Justice Duncan, and Justice Wilson.

The Ninth Court of Appeals affirmed judgment for City in First Amendment/Whistleblower claims since no causal connection was present

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Samer Shobassy v. City of Port Arthur, No. 09-18-00363-CV (Tex. App.—Port Arthur  November 19, 2020) (mem. op.).

In this appeal from a trial court’s judgment dismissing the plaintiff’s retaliation-in-employment case.  The Beaumont Court of Appeals affirmed the trial court’s summary judgment.

The plaintiff worked as an assistant city attorney for the city for five years and the city attorney was the plaintiff’s supervisor.  During the plaintiff’s employment, he discussed the city’s compliance with purchasing law in the context of his employment as an assistant city attorney.  He was terminated by the city attorney and was given a termination notice which indicated that he was terminated because, among other things, he failed to follow-up on tasks and communicate with the city attorney and failed to complete the tasks assigned to him.  Plaintiff sued the city in district court claiming a Whistleblower Act claim and that his termination violated his First Amendment rights.  The city filed a plea to the jurisdiction and no evidence motion for summary judgment which the trial court granted.

To establish a claim for retaliation under the Whistleblower Act, the plaintiff has to show that the employer’s termination would not have occurred had the plaintiff not made a good faith allegation of violation of law to an appropriate law enforcement authority.  Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995).  The report has to be a “but-for” cause of the termination.  Office of the Attorney Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex. 2020). The plaintiff was unable to make the causal connection.  To establish a claim for a free-speech retaliation claim, the plaintiff must show the plaintiff was terminated for engaging in constitutionally protected speech.  Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996).   The speech in question is not protected if it is spoken within the context of the employee’s official duties.  Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 1998). The Whistleblower claim was dismissed because the claims of illegal conduct by the City were not made until after the termination. The free speech claim was invalid because his speech was performed and related to is employment position. The dismissal of both was proper.

If you would like to read this opinion click here.   Panel consists of Chief Justice McKeithen and  Justices Kreger and Horton. Opinion by Justice Hollis Horton

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.