Texas Supreme Court holds “good faith” efforts clause to seek future Board approval in contract is unenforceable. Also, damages would be consequential so Board retains immunity

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Dallas/Fort Worth International Airport Board v Vizant Technologies, 18-0059, (Tex. May 17, 2019).

This is a governmental immunity defense in a breach of contract case where the Texas Supreme Court held Chapter 271 of the Texas Local Government Code did not waive immunity for the specific relief required under the contract.

The Dallas/Fort Worth International Airport Board (“Board”) retained Vizant Technologies (“Visant”) by contract to provide recommendations on how the airport could reduce payment-processing costs. The contract contained provisions where the Board would pay Vizant a percentage of savings and/or refunds based on its advice. The contract stated the cap on payments shall not exceed $50,000. The Court commented in a footnote the appearance this was done to avoid competitive bidding limits or authorizations by delegation to staff without Board approval. However, the contract also contained a provision that in the event Vizant’s fee exceeds this cap the Board “will make a good faith effort to receive board authorization to increase the compensation,” and “if approved,” the parties would amend the contract to reflect the higher amount. The Board’s staff paid the $50,000 and ultimately asked the Board to approve an increase to $330,000, but the Board denied that request. Vizant sued.  Vizant asserts its fees should have exceeded $300,000, but the airport failed to use a good faith effort to obtain Board approval. The Board filed a plea to the jurisdiction which was denied, but the court of appeals reversed and dismissed. Vizant filed its petition for review.

The Court first held the Board was acting in a governmental not proprietary capacity. the legislature has unambiguously declared that the “maintenance, operation, [and] regulation” of an airport and the “exercise of any other power granted” for that purpose, whether exercised “severally or jointly” by local governments, “are public and governmental functions, exercised for a public purpose, and matters of public necessity.”  As a result, the Board is immune absent a waiver.

Contract waivers are primarily found in Chapter 271 of the Texas Local Government Code. While it has a waiver of immunity, it has limiting language as to the types of damages allowed and contractual approvals which apply. The “good faith” effort language becomes pivotal for this analysis. A contractual duty to act in good faith does not create a new obligation or independent cause of action; instead, it merely governs the conduct by which the party must fulfill the contractual obligation to which it applies. Under the written terms of the contract, read literally, the Board promised to make a good-faith effort to obtain its own authorization for the higher payments. The parties agreed the Board’s staff negotiated based on delegated authority and executed the contract on the Board’s behalf, with the Board’s authority but without the Board’s express approval. Under these circumstances, the Court held it was reasonable to construe the clause as a promise by the Board’s staff to make a good-faith effort to obtain the Board’s authorization for any higher payment. The staff had no authority to contractually obligate the Board to pay anything more than $50,000. To the extent the staff agreed to make a good-faith effort, that promise is not enforceable against the Board—and even if it were, the remedy could never be to require the Board to pay more than it authorized to staff to negotiate. To the extent the Board made any form of agreement, the Board merely promised to make an effort to agree to the higher payment, but to do so in good faith. “In this sense, its promise was the equivalent of a promise to negotiate towards a future bargain in good faith.”  Agreements to negotiate toward a future contract are not legally enforceable.  However, even if such were enforceable, the listed measure of damages constitutes consequential damages incurred as a result of the defendant’s failure to act in good faith, not as a result of the defendant’s failure to perform under the anticipated contract. And since §271.153 expressly excludes this type of consequential damages, the Board retains immunity.

If you would like to read this opinion click here.  Opinion by Justice Boyd.  The docket page with attorney information can be found here.

Texas Supreme Court holds navigation district retains immunity from suit by State, but ultra-vires claims against commissioners can proceed to trial

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Chambers-Liberty Counties Navigation District, et al. vs. State of Texas, 17-0365 (Tex. May 10, 2019)

This is an interlocutory appeal in a sovereign immunity/regulatory control case where the Texas Supreme Court held the Chambers-Liberty Counties Navigation District (“District”) retained immunity from suit against the claims brought by the State of Texas. However, the District’s commissioners were not immune from the ultra-vires claims.

The District leased part of a navigation stream to Sustainable Texas Oyster Resource Management, LLC (“STORM”) for specific oyster production. The Texas Parks and Wildlife Department (“Department”) asserted the Department had exclusive authority to regulate oyster production in Texas and sued the District to invalidate a lease issued to STORM.  In the 1950s, the State of Texas conveyed more than 23,000 acres submerged land to the District, which as become prime for oyster cultivation. After the lease was issued to STORM, the company sent no-trespass notices to holders of any oyster-production permits. These permits authorize a holder to “plant oysters and make private beds in public waters.”  STORM claimed exclusive use of the leased submerged land. While the District agrees the water above the submerged land belongs to the State, it asserts it owns the fee simple in the land and can lease its exclusive use. The Department sued the District to invalidate the lease and individual District commissioners for ultra-vires acts associated with the lease. The Department also sought monetary damages for “restitution.” The District and commissioners filed a plea to the jurisdiction, which was partially denied.

The Court first addressed the Department’s claim for monetary damages. It held that Under §311.034 of the Government Code (Texas Code Construction Act), the use of the term “person” in a statute does not waive immunity.  And while the Parks and Wildlife Code allows the Department certain rule making authority, the Department cannot waive immunity by rule which is not contained within the statute.  Since nothing in the applicable Parks and Wildlife Code waives immunity, no waiver for declaratory and monetary claims exists. The Department cannot circumvent the immunity by labeling a claim for monetary damages as “restitution.”    Next, the Court held an ultra-vires claim cannot be brought against the District. However, it can be brought against the commissioners. The Court held the Department properly pled the commissioners acted beyond their lawful authority by entering into the lease. The statute creating the District provided it “rights, privileges and functions” but only those conferred by law. Unlike a home-rule municipality which gets its power from the Texas Constitution, the District is a creature of statute and must look to the Legislature for its authority. Considering the entire regulatory system as a whole, the Court held the powers of the District are limited to navigation. While the statute allows the District to lease land and regulate marine commerce, the question of whether  oyster cultivation qualifies may be precluded when comparing the exclusive power granted to the Department. The Department shall regulate the taking and conservation of fish, oysters, and other marine life. The ultra-vires claims against the commissioners to prospectively enjoin the lease are permitted to go forward.  However, the Court was careful to explain that its holding only allows the State’s claims to go to trial, not whether the State will ultimately win on the present facts.

If you would like to read this opinion click here.  Opinion by Justice Blacklock. The docket page with attorney information can be found here.

Texas Supreme Court holds plaintiff in red-light challenge lawsuit was required to exhaust administrative remedies before filing for injunctive relief

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Garcia v City of Willis, et al., 17-0713 (Tex. May 3, 2019)

In this constitutional challenge to red-light camera case, the Texas Supreme Court held the Plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim.

Luis Garcia sued the City of Willis on behalf of himself and “others similarly situated” who paid a civil penalty for violating a city ordinance for red-light infractions caught on camera. He sought the invalidation of the ordinance, a refund, or a takings claim. The City filed a plea to the jurisdiction, which was denied by the trial court, but granted by the court of appeals. On appeal to the Supreme Court the State filed an amicus brief arguing additional authority in support of the City.

While the City did not initially challenge Garcia’s standing to bring suit, the State’s amicus brief raised the issue and the Court felt it was required to address it first. After receiving notice from the City of his red-light violation, Garcia paid the requisite civil fine. He has no outstanding fines and does not assert he plans to violate red-light laws in the future. And for standing purposes we “assume that [plaintiffs] will conduct their activities within the law,” barring some stated intent otherwise. Because no pending charges exist, Garcia lacks standing for prospective injunctive relief and could not be a class member of others similarly situated who have not paid the fine.  However, he does have standing to seek a refund of his past payment. In this context, immunity is waived only if Garcia paid the fine under duress.  Here, Garcia chose to voluntarily pay a fine and forgo administrative remedies that would have entitled him to an automatic stay of the enforcement of his fine under TEX. TRANSP. CODE § 707.014(a).  Because Garcia could have invoked this automatic reprieve from payment and challenged the notice of violation administratively but chose not to, he cannot now claim he paid his fine under duress.  Therefore, the City maintains its immunity.   Garcia additionally argues the fine imposed on him amounts to an unconstitutional taking because the underlying is unconstitutional and because the City failed to conduct the statutorily required engineering study.  He asserts he could not challenge the constitutionality of the fine in the administrative hearing. However, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments. As a result, he failed to exhaust his administrative remedies.

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

Texas Supreme Court holds entity not required to show risk of harm to a specific individual in order to except records from PIA release

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Texas Department of Criminal Justice v Levin, 17-0552 (Tex. April 12, 2019)

This is a Public Information Act (PIA) case where the Texas Supreme Court held the PIA must yield to protecting information that, if released, would create a substantial threat of physical harm to the source’s employees and others.

The Levin Plaintiffs (Levin) represent capital defendants on death row. Concerned with the possibility of mismanaged executions by lethal injection, Levin made a PIA request of the Department, which included a list of drugs used for lethal injections and their source. The Department did not release the specific identity of the pharmacy or pharmacist that compounded the drugs (i.e. source) and requested an Attorney General opinion. The AG agreed with the Department that the PIA has a common law exception where release would create a substantial risk of harm. Levin appealed. While on appeal, the Legislature amended the PIA to create a statutory exception for the source of drugs used for executions.

In prior court and AG opinions, a threat to a specific party was required in order to take advantage of the common law exception. Here, no one but the Department and the pharmacy itself knows the identity of the source that supplies the lethal injection drugs to the State of Texas. There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source’s identity has been kept confidential. The Court noted, however, the word “substantial” as used in prior opinions does not refer to the degree to which harm is likely to occur, but rather, the degree of the potential threat of harm itself. Courts should focus on the connection between the requested information, on the one hand, and the potential threat and magnitude of such harm, on the other. The Court found, based on the summary judgment evidence, the Department properly established release of the information would create a potential substantial physical harm which does not currently focus on an identified person, including evidence of what happened to other pharmacy’s when release of similar information became public (Note: some but not all of the evidence was considered relevant). As a result, the Department must withhold the information requested.

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

13th Court of Appeals holds building and standards commission order was final, so could not be collaterally attacked under TOMA

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Harker Heights Condominiums, LLC v. City of Harker Heights, Texas, 13-17-00234-CV (Tex. App. – Corpus Christi, March 28, 2019).

In this case the 13th Court of Appeals affirmed the granting of the City of Harker Heights’ plea to the jurisdiction dismissing a claim for injunctive relief to prevent the demolition of a building.

Harker Heights Condominiums (HHC) owns property on which thirty-three condominium units sit and that are leased to low income residents in need of housing. The City inspected the property, found defects and ordered repair.  The inspector found substandard conditions rising to such a level as to pose substantial danger to life, health and property.  The City’s Building and Standards Commission ordered certain properties repaired within ninety days or be demolished. HHC was able to bring one unit up to code, but was not able to timely repair the remaining units. After the City awarded a demolition contract, HHC sued to prevent destruction of the units. An initial temporary injunction was granted. After HHC added a claim for violating the Texas Open Meetings Act (TOMA) the City filed a plea to the jurisdiction which was granted. HHC appealed.

Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. The local government code provides for judicial review of any decision of a building and standards commission panel, but the “district court’s review shall be limited to a hearing under the substantial evidence rule.” To appeal an order of a building and standards commission, an aggrieved party must file a verified petition in district court within thirty days of the commission’s order.  HHC waited eighty days. HHC asserted the “decision” was actually the City Council decision to award the demolition contract, not the Commission’s decision. However, the City’s award was merely the granting of a contract, not an order outlined in Chapter 214 of the Local Government Code. The court noted that even if the HHC injunctive relief were interpreted to be a proper petition for review under Chapter 214, it was nonetheless untimely. This untimely filing also means HHC’s TOMA suit is untimely as holding otherwise would subject the commission order to impermissible collateral attack. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, Justice Hinojosa and Visiting Judge Dorsey. Memorandum Opinion by Visiting Judge Dorsey. The attorneys listed for the City are Charles D. Olson, Charles Alfred Mackenzie and Burk A. Roberts.  The attorneys listed for HHC are Brandy Wingate Voss,  Ryan D. V. Greene and  G. Alan Waldrop.

Fort Worth Court of Appeals hold EDC is not a governmental unit for immunity and contract purposes

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Haltom City Economic Development Corporation v. Kent Flynn,  02-18-00145-CV, (Tex. App. – Fort Worth, March 21, 2019).

This is a breach of contract case where the Fort Worth Court of appeals upheld the denial of an EDC’s plea to the jurisdiction.

Haltom City Economic Development Corporation (HCEDC) and Flynn entered into an contract for services.  When Flynn believed the HCEDC did not properly pay the amounts owed under the contract, he sued. The HCEDC filed a plea to the jurisdiction, which was denied. The HCEDC appealed.

The HCEDC is a Type B economic development corporation. Section 505.106(b) of the Texas Local Government Code provides that for purposes of the Texas Tort Claims Act, a Type B EDC “is a governmental unit and the corporation’s actions are governmental functions.” Tex. Loc. Gov’t Code § 505.106(b). Section 505.106(a) provides that EDCs “are not liable for damages arising from the performance of a governmental function of a Type B [EDC] or the authorizing municipality.” Tex. Loc. Gov’t Code § 505.106(a). The Local Government Code specifically prohibits a municipality from “delegate[ing] to [an EDC] any of the [municipality’s] attributes of sovereignty, including the power to tax, the power of eminent domain, and the police power.” Tex. Loc. Gov’t Code § 501.010. The statute specifies that an EDC “is not a political subdivision . . . for purposes of the laws of this state.” Tex. Loc. Gov’t Code § 501.055(b).  Citing to Rosenberg Development Corp. v. Imperial Performing Arts, Inc., (summary found here) the Court held that EDCs “are not governmental entities in their own right and therefore are not entitled to governmental immunity.”  Essentially, they may only get liability protection in relation to tort claims, not contract claims. As a result, the plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Pittman and Justice Bassel. Memorandum Opinion by Justice Pittman. The attorney listed for the EDC is Fredrick ‘Fritz’ Quast.  The attorneys listed for Kent are Stephen L. Tatum and David Fielding.

Texas Supreme Court holds Type B economic development corporations are not entitled to immunity for breach of contract claims

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Rosenberg Development Corp. v. Imperial Performing Arts, Inc., No. 17-0660 (Tex. – March 9, 2019).

The Texas Supreme Court holds Type -B EDCs are not entitled to governmental immunity in breach of contract cases.

Rosenberg Development Corporation (RDC) is a Type B economic development corporation created by the City of Rosenberg. RDC executed a contract with Imperial Performing Arts, Inc. (Imperial), a nonprofit organization for performance and visual art activities, including reopening a local arts center and theater. However, the reopening and renovations exceed the agreed amounts by over ten fold. RDC and Imperial filed suit and counterclaims. The immunity issue addressed the breach of contract claims. RDC filed a plea to the jurisdiction, which was denied as to Imperial’s contract claim, and was affirmed by the court of appeals. RDC filed for discretionary review.

The threshold issue for the Court was whether RDC—a municipality’s statutorily authorized corporate creation—is immune from suit under the common law even though RDC is neither a sovereign entity nor a political subdivision of the state. The Development Corporation Act (Title 12, Subtitle C1 of the Local Government Code) authorizes municipalities to create such EDC corporations. The Court analyzed the Act, its purpose, and its language. The Court noted that for the purpose of interlocutory appeals, the RDC qualifies given the specific definition in the Texas Tort Claims Act.  The Court then noted the Development Corporation Act does not speak to governmental immunity directly, but in §505.106, the Legislature has declared that (1) a Type B corporation is “not liable for damages arising from the performance of a governmental function of a Type B corporation or the authorizing municipality,” and (2) “[f]or purposes of Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a governmental unit and the corporation’s actions are governmental functions.” Notably, however, an economic development corporation “is not a political subdivision or a political corporation for purposes of the laws of this state …” and the Legislature has forbidden authorizing municipalities from bestowing on the corporation any “attributes of sovereignty.”   As to the RDC’s argument it obtains statutory immunity from suit and liability, the Court held “[b]ecause section 505.106 merely purports to limit the remedies available when economic development corporations perform governmental functions, we need not consider whether the Legislature can confer immunity by statute or only waive it.”  Where the governing statutory authority demonstrates legislative intent to grant an entity the “nature, purposes, and powers” of an “arm of the State government,” that entity is a government unit unto itself and is entitled to assert immunity in its own right. The Court analyzed cases where governmental self-insurance risk pools have been determined to be governmental entities and determined what is required to qualify as a governmental unit unto itself. While promoting and developing business enterprises and job training is a public purpose merely engaging in such an act does not, ipso facto, make the actor a governmental unit. The common-law rule of immunity is exclusively for the judiciary to define, and in doing so, the Court does not just consider whether the entity performs governmental functions, but also the “nature and purposes of immunity.” Granting immunity to an EDC is not necessary to satisfy the political, pecuniary, and pragmatic policies underlying our immunity doctrines. Further, the Legislature simply did not grant these entities “powers of government” to perform essential governmental functions or activities. Also, since the Act already limits liability and damage’s exposure, the fiscal analysis used to determine if an entity is governmental is not applicable. Ultimately, the Court held “that the Legislature did not authorize municipalities to create economic development corporations as distinct governmental entities entitled to assert immunity in their own right.”

Chief Justice Hecht wrote separately only to point out the highly unusual features of a Type B municipally-created economic development corporation. While he agreed an EDC is not a governmental unit by itself, an EDC is not liable for damages arising from the performance of its governmental functions for purposes of the Texas Tort Claims Act. Since the TTCA only waives immunity, he opines an EDC has immunity from suit and liability for tort claims. In dicta, the Chief Justice noted that since an EDC’s expenditures must be approved by its municipality, a judgment against an EDC in any circumstance may not be enforceable.

If you would like to read this opinion click here. Justice Guzman delivered the opinion of the court.  Chief Justice Hecht filed a concurring opinion, found here.  The docket page with attorney information can be found here.

Texas Supreme Court holds pension boards amendments to deferred retirement option account was not unconstitutional

Eddington v Dallas Police and Fire Penson Systems, et al.,   17-0058, (Tex. March 8, 2019)

This is a statutory construction case where the Texas Supreme Court held the City of Dallas’ amendment to its pension plan did not violate the Texas Constitution.

Article XVI, Section 66 of the Texas Constitution prohibits the reduction of benefits in certain local public retirement plans.  The Dallas Police and Fire Pension System (“the System”) amended its pension plan to reduce the interest rate paid on Deferred Retirement Option Plan (“DROP”) accounts. After a member is eligible for retirement, the member can choose to continue working and when leaving active service, draw a higher monthly annuity.  However, a member’s annuity is fixed at retirement age and does not increase with continued service.  While a member continues to work, the System created the DROP option allowing monthly credits to his DROP account, accessible upon leaving active service. In other words, members working past retirement eligibility can choose between a higher annuity on leaving active service, or a lower annuity plus a forced savings account.  The petitioners sued asserting the amendments to the changed interest rate was unconstitutional. The trial court and appellate court denied petitioner’s relief.

After analyzing the text of Section 66 and the uncontested facts asserted, the Court held lowering the interest rate that as-yet unearned DROP payments will bear does not affect a benefit accrued or granted to employees. Interest already credited to DROP accounts is not impacted. The reduction in DROP account interest is prospective only. Section 66(d) protects “accrued” benefits only. Such benefits are those that have been earned by service, not those that may be earned by future service.

Finally, the Court held the trial court did not error in excluding the legislative history evidence submitted and the fiscal notes of the Legislative Budget Board.  The Court reasoned that while the judiciary can consider such information, those are construction aides. Courts should rely heavily on the literal text. The Court determined the text of Section 66 is plain as it affects the parties, so no error was made by the trial court.

If you would like to read this opinion click here. Chief Justice Hecht delivered the opinion of the Court.  Justice Guzman and Justice Brown not sitting. The docket page with attorney information can be found here.

14th Court of Appeals holds immunity is waived for refund of penalties and interest paid on delinquent taxes only if taxpayer requested waiver within 180 days

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Harris County, et al. v. Falcon Hunter, LLC, 14-18-00247-CV (Tex. App. – Houston [14th Dist.], February 7, 2019).

This is a delinquent tax case where the taxpayer company, Falcon Hunter, LLC. (Falcon), sued for a refund of penalties and interest paid.  The 14th Court of Appeals reversed the denial of the taxing entities plea to the jurisdiction and dismissed the case.

After the taxing units sent the tax bill to an incorrect address, Falcon, failed to pay property taxes. When it discovered it was listed as delinquent, Falcon paid the taxes including penalties and interest. Three years later, Falcon applied for a refund of the penalties and interest, but did not seek a refund of any property taxes paid. When Falcon did not receive a response, it sued for the amount in penalties and interest, plus collection fees and attorney’s fees. The taxing units filed a plea to the jurisdiction, which was denied. The units appealed.

Taking Falcon’s pleadings as true for purposes of the analysis, the Texas Tax Code §31.11(k) states that after a request for refund has been denied, the taxpayer may file suit against the taxing unit in district court to compel the payment of the refund within 60 days. However, it applies when a tax bill is returned to the taxing unit by the post office under certain conditions. To secure the benefit the taxpayer must submit a request for waiver of penalties and interest under the code. The request must be made before the 181st day after the delinquency date. Since Falcon waited almost three years, it did not timely request a waiver and did not exhaust their administrative remedies.  Section 31.11 waived immunity for a refund of “taxes.”  However, the legislature took care to clearly distinguish the terms “penalty” and “interest” from the term “tax.”  A taxpayer has three years to seek a refund of the tax. However, if a taxpayer wants penalties and interest on a delinquent tax waived, the taxpayer has, as relevant here, 180 days from the delinquency date to request the waiver in writing. Falcon sought a refund of penalties and interest, not the tax. As a result, no waiver of immunity exists for a refund of penalties/interest outside the 180-day limitation. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Wise, Justice Jewell and Justice Poissant. Memorandum Opinion by Justice Jewell. The attorneys listed for the Appellants are Stephen A. Smith, Mary Lucille Anderson and Patrick Nagorski.  The attorneys listed for Falcon are Kory Ryan,  John Brusniak JR. and Tracy Turner

Texas Supreme Court holds election contest moot, but trial court was still in error when it awarded sanctions

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Laura Pressley v Geregorio Casar, 17-0052 (Tex. January 25, 2019)

This is an election contest case for a city council seat where the losing party and her attorney were sanctioned for bringing a frivolous claim. The Texas Supreme Court reversed the award of sanctions and dismissed the case as currently moot.

Gregorio Casar and Laura Pressley finished first and second, respectively, in the 2014 Austin City Council general election for the District 4 council seat. Pressley filed a request for recount, which included a recount of the electronic voting system information. For the manual recount, the CVR file for each voter was printed and counted by hand. The manual recount found no discrepancies with the original canvass and confirmed the original results that Casar won. Pressley next filed an election contest, arguing that CVRs are not “ballot images” or “images of ballots cast,” as the Election Code requires. She also asserted the election officials failed to allow her and the poll watchers the ability to observe the retrieving of the images from the machines. Casar filed traditional and no-evidence summary judgment motions and moved for Chapter 10 sanctions, which the trial court granted and the court of appeals affirmed.

The Court first noted Casar was reelected and began his second term in 2017. Because Pressley’s petition for review was filed after the completion of Casar’s contested term, the Court  decide is whether the election contest is moot.

Casar argued this election contest is moot because no remedy exists to contest an expired term of office. The Court agreed and no exception to the mootness doctrine applied. However, even though the election contest provision is moot, the Court still considered the sanctions holdings. Chapter 10 of the Civil Practice and Remedies Code permits sanctions for pleadings that are filed for an improper purpose or that lack legal or factual support. Pleaded claims must be warranted by existing law or a nonfrivolous argument to change existing law.  The trial court sanctioned Pressley and Rogers for three claims in which they alleged: (1) election irregularities, (2) criminal violation by election officials, and (3) voter disenfranchisement.  After analyzing each, the Court held at least some evidence exists to support the claims asserted. There is nothing frivolous about presenting a statistical analysis showing that the results were unlikely as persuasive support. Pressley’s computer-science and data expert testified that he found at least nine corruption errors in the files, which constitute irregularities and is also an indicator of potential corruption. The seals on the election machines were also broken. Pressley did not need to be right or produce enough evidence to prevail on her entire suit to avoid sanctions. These claims have some evidentiary support and that is enough to make them non-frivolous.  The sanctions order was reversed and the remainder dismissed as moot.

 

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

Expert Testimony is intangible, so no TTCA claim for use in SOAH hearing says Austin Court of Appeals

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Walter Zawislak, MD v. Texas Medical Board, 03-17-00523-CV (Tex. App. – Austin, January 25, 2019).

This is a Texas Tort Claims Act (TTCA) case where the Austin Court of Appeals affirmed the granting of a plea to the jurisdiction by the Texas Medical Board (TMB) involving the use of an expert for testimony in a hearing before the State Office of Administrative Hearings (SOAH).

The TMB filed a complaint against Zawislak at SOAH for alleged violations of the Texas Medical Practice Act. TMB offered into the administrative record an expert report and deposition testimony. The SOAH judge issued an order publicly reprimanding Zawislak.   Zawislak sued the TMB under the TTCA asserting TMB’s negligent use of the expert report and testimony proximately caused him personal injury, including mental anguish, medical expenses, loss of services, and loss of past and future earning capacity. The TMB filed a plea to the jurisdiction, which was granted. Zawislak appealed.

Analyzing the claims the court held Zawislak does not allege that he suffered a personal injury from the use of the paper on which the report and testimony were recorded, but by the use of the information in that paper. Information is intangible and, thus, does not constitute tangible personal property under § 101.021(2) of the TTCA. And since his pleadings are defective in a way which cannot be cured by amendment, the trial court did not error by failing to allow him the opportunity to amend. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Goodwin and Justice Kelly. Memorandum Opinion by Chief Justice Rose. The attorneys listed for the Medical Board are Scott M. Freshour and Daniel Olds. The attorney listed for Walter is Craig W. Harvey.

Austin Court of Appeals holds dog owner entitled to jury trial in appeal from municipal court of record

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In re: Linda Pool, 03-18-00299-CV (Tex. App. – Austin, January 23, 2019)

This is a mandamus case where the Austin Court of Appeals conditionally granted the writ requiring a county-court-at-law to hold a jury trial on a dangerous dog determination appeal.

Pool owns a dog named Pepper who allegedly attacked a jogger named Hoffman. An independent hearing examiner took sworn testimony and determined Pepper was a “dangerous dog” under §822.041(2) of the Texas Health and Safety Code. Pool appealed the decision to the Austin Municipal Court. The municipal judge, without a jury, held a hearing and confirmed Pepper was a dangerous dog. Pool appealed to county court at law and requested a jury trial de novo. The state argued that since the Austin Municipal Court is a court of record, any appeal is based on errors in the record and no de novo appeal is possible. The trial court held Pool was not entitled to a de novo review. Pool brought this mandamus action to compel a jury trial.

The court held this was a case of statutory interpretation. Under Chapter 30 of the Texas Government Code, appeals from a court of record are only appeals on the record. Tex. Gov’t Code §30.00014(b).  However, §822.0424 states a party “to an appeal under Section 822.0421(d)… may appeal the decision… and is entitled to a jury trial on request.”  The court noted that subsection (a) of §30.00014 states an appeal can be had from a judgement or conviction, but subsection (b) (which states an appeal is on the record only) simply references the word “conviction” and not “judgement.”  The court essentially held that a conviction equals criminal matters and a “judgment” equals civil matters for purposes of appeal. Since “judgment” was not mentioned in subsection (b) regarding the form of appeal, the form of appeal is not always on the record. Since §822.0424 states the appellate can make a jury trial request, the county court at law was required to grant the request. The court further held, in a footnote, that if the two statutes could not be harmonized, §822.0424 would still win out as the most recently passed provision. It conditionally granted the writ.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Goodwin and Justice Baker. Memorandum Opinion by Justice Goodwin. The attorney listed for Pool is Ms. Anna Eby.  The attorneys listed for the Travis County Attorney’s Office, real party in interest are David A. Escamilla, Tim Labadie,  Annalynn C. Cox.

Historic Commission’s suit moot after City acquired title to property says El Paso Court of Appeals

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City of El Paso v Grossman, 02-17-00384-CV (Tex. App. – El Paso, August 30, 2018).

Max Grossman, an assistant professor of Art History at the University of Texas-El Paso and who serves on the El Paso County Historical Commission, sought a declaratory judgment to prevent the City from demolishing an older downtown area, “Duranguito” (Union Plaza), and putting up a multipurpose cultural, athletic, and performing arts facility. The City filed a plea to the jurisdiction, which was denied. During the pendency of the appeal, the court of appeals issued emergency relief to prevent demolition while the appeal was pending. The City moved the court of appeals dismiss its appeal, explaining that since its notice, the City had purchased the property in question and wished to proceed to trial.  Grossman opposed the dismissal.

Texas Natural Resources Code § 191.0525(a) requires notice to a historical commission before an entity breaks ground in order for the commission to determine historical significance. After acquiring title, the City did notify the Commission. This mooted the declaratory judgment claims. The remainder of Grossman’s claims are not yet ripe as they occur after notice and historic analysis are provided.  As a result, the court granted the City’s motion to dismiss the appeal as moot and release the emergency stay.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Gabriel and Justice Pittman.  Memorandum Opinion by Chief Justice Sudderth.  The docket sheet with attorney information can be found here.

City ordinance allowed to make additional criteria for dangerous animal determination says Amarillo Court of Appeals

Shannon Nicole Washer, et al. v. City of Borger, 07-16-00413-CV (Tex. App. – Amarillo, July 31, 2018).

In this case the Amarillo Court of Appeals affirmed the dismissal of the Plaintiffs’ claims challenging the constitutionality of an animal control ordinance and a dangerous dog determination preemption issue.

The City of Borger, a home-rule municipality, has an animal control ordinance and dangerous dog determination adoption under Tex. Health & Safety Code § 822.0421. Borger’s ordinances established an animal control authority to investigate dangerous animals (not just dogs), secure impoundment, if necessary, and provide a process for appeal.  Appeals go to municipal court. The authority’s written determination that the animal is dangerous gives rise to a rebuttable presumption that the animal is a dangerous animal. Appeal from the municipal court goes to a county court or county court at law. Washer sued to prevent the application of the ordinance against her and her dog. She obtained a temporary injunction, but on final hearing, the court dismissed her claims. She appealed, but due to the lack of a reporter’s record, the court considered only those issues reviewable by reference to the clerk’s record.

City regulations ancillary to and in harmony with the general scope and purpose of state law are not preempted. Further, Tex. Health & Safety Code § 822.047 allows a city to place additional regulations on the state law dangerous dog determination criteria. Using statutory construction principles, the court held the ordinance was not in conflict with state law or the constitution. The ordinance provides for the taking of sworn statements in addition to interviewing individuals, examining the animal and reviewing other relevant information. Being more specific or providing additional information is not a contradiction. State law does not limit the investigation to sworn testimony. Further, state law is silent on whether a presumption exists of dangerousness after an authority makes a determination.  As a result, the judgment is affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Pirtle and Justice Parker. Memorandum Opinion by Justice Pirtle. The attorney listed for Washer is Frank Lay.  The attorney listed for the City is Joseph Parsons.

Administrative records of county court at law not subject to PIA says Houston’s First District Court of Appeals

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Enrique Ramirez v. Ed Wells, Court Manager, 01-17-00262-CV (Tex. App. – Houston [1st Dist.], March 27, 2018)

This is a Texas Public Information Act (“PIA”) suit where the 1st District Court of Appeals in Houston affirmed the trial court judgment in favor of the court administration defendants.

Ramirez was removed from the eligibility list to receive criminal court appointments in the Harris County Criminal Courts at Law, after having been on the list for some time. Ramirez filed a PIA to see all records related to his removal. The Court Manager informed him the judiciary is exempt from the PIA and the rules of judicial administration protects release of internal deliberations of the court. The question under Rule 12 is whether the documents are court administrative files vs judicial records. Ramirez appealed to the Office of Court Administration (“OCA”), arguing that the decision to remove him from the list was an administrative decision and thus the information he requested did not constitute judicial records. The OCA agreed they were administrative, but determined it only had authority over judicial records so could not grant Ramirez any relief. Ramirez filed a petition for writ of mandamus under PIA to compel release of the records. After opposing summary judgments, the trial court granted the Defendant’s MSJ and denied Ramirez’ MSJ. Ramirez appealed.

Under the PIA, the judiciary is specifically excluded in the PIA’s definition of “governmental body.”  Access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules. The record demonstrated that regardless of whether the records were “judicial” or “administrative” they qualify as “information produced, maintained, or assembled by the judiciary.”  Access is therefore not governed by the PIA. Since Ramirez’ petition only seeks mandamus under the PIA, the trial court properly denied his summary judgment.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Massengale and Justice Brown. Memorandum Opinion by Chief Justice Radack.  The attorney listed for Ramirez is Timothy A. Hootman.  The attorney listed for the Defendants is Stephen A. Smith.