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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Officers’ and City’s appeal dismissed by U.S. 5th Circuit because their dismissal “with prejudice” argument inapplicable when inmate could still get conviction reversed

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Kerry Max Cook v. City of Tyler, Texas, et al., 19-40144, 2020 WL 5268509 (5th Cir. Sept. 4, 2020)

This is an appeal and cross-appeal from a dismissal of Cook’s §1983 claim seeking damages suffered from a series of wrongful prosecutions, convictions, and imprisonment, which the U.S. 5th Circuit affirmed.

Kerry Cook filed a §1983 claim, alleging official misconduct via a series of wrongful prosecutions, convictions, and imprisonment. However, the district court, citing Heck v. Humphrey (512 U.S. 477 (1986)), found that a malicious prosecution §1983 claim does not accrue until his conviction is formally terminated in his favor, the Texas Court of Criminal Appeals vacates his conviction, and the State dismisses the indictment against him. The district court dismissed Cook’s suit “with prejudice to the claims being asserted again until the Heck conditions are met…” The City and officer Defendants appealed the dismissal as being without prejudice, insisting the dismissal must be with prejudice. Cook asserted the dismissal was not final, not appealable, and therefore the 5th Circuit lacked subject matter jurisdiction.

The 5th Circuit analyzed two questions: 1) whether the dismissal was with or without prejudice, and 2) whether the dismissal was final and appealable. To the first question, the 5th Circuit found that the dismissal language is taken near verbatim from non-prejudicial language recommended in Johnson v. McElveen (101 F.3d 423 (5th Cir. 1996)), when a trial court is dismissing a case under the condition that it may be reasserted if the Heck conditions are met. To the second question, the 5th Circuit held the dismissal was not final, and thus not appealable because the district court contemplated Cook satisfying the Heck conditions at a later date. The 5th Circuit contrasted this court’s Heck dismissal with other, appealable, dismissals where the issue to be determined was whether Heck was even applicable.

If you would like to read this per curiam opinion, click here. The panel consists of Justices Davis, Jones, and Willett.

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

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

U.S. 5th Circuit holds no deliberate indifference alleged requiring jailers to protect inmate from attack by another inmate

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Torres v. Livingston, 19-40470, 2020 WL 4933063 (5th  Cir. Aug. 24, 2020).

This is an appeal from a dismissal of an inmate’s § 1983 claims which the U.S. 5th Circuit affirmed.

Christopher Torres worked as an inmate janitor in an administrative segregation unit.  While working, another innate requested an officer to pick up photos that were on the floor just outside his cell. The officer, as a matter of routine in fulfilling inmate requests, directed Torres to go ahead and pick up the photos. While bending over to pick up the photos, the inmate stabbed Torres in his neck. Torres sued a correctional officer and several staff members and administrators per 42 U.S.C. § 1983 for allegedly failing to protect him from an inmate attack.

To hold an officer liable under the Eighth Amendment it mush be shown that the officer acted with deliberate indifference to the inmate’s health or safety. The U.S. Fifth Circuit found that Torres did not offer any facts suggesting the jailor knew of and disregarded a substantial risk to his health and safety. As a result, Torres failed to state § 1983 claim. Additionally, Torres’s failure to allege facts amounting to a constitutional violation for a failure to train or supervise.

If you would like to read this opinion click here. The panel consists of Justices Smith, Willett and Duncan.  Opinion by Justice Smith.

The Third Court of Appeals held that no implied authority exists for actions of a state agency without a showing that the implied authority is required to effectively perform a statutorily expressed responsibility.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

University of Texas at Austin President Jay Hartzell, et al. v. S.O., et al., No. 03-19-00131-CV (Tex. App.—Austin September 4, 2020).

In this ultra virus University case, the plaintiff sued University officials for exceeding their authority in attempting to revoke her Ph.D after she had already graduated from the University.    The Court of Appeals held that the University did exceed its authority in attempting to revoke her earned degree because they do not have specific statutory authority to revoke degrees and the authority to revoke degrees is not essential to its statutory authority to award degrees.

The plaintiff was awarded a Ph.D in 2008.  In 2012, the University conducted an investigation and attempted to revoke her Ph.D for academic misconduct in 2014.  The plaintiff sued the University stating that her due process rights were violated by the University’s procedure.  The University undid its revocation and instituted a different procedure to investigate the possibility of revoking the plaintiff’s degree again.  In response to the University’s renewed efforts, the plaintiff sued the University in this suit as an ultra vires claim.  The University defendants filed a plea to the jurisdiction arguing they had the authority to revoke the degree because its rules allowed it and because the authority to revoke degrees is implied with the authority to award degrees.  This case has been through the appellate process once on the issue of ripeness.  The appellate court held that her complaint was ripe and the case was sent back to the trial court.  Upon return, the trial court granted-in-part and denied-in-part the plea.  In this appeal, the issue is whether the University has the authority to revoke degrees, the basis of the plaintiff’s ultra vires claim.

An ultra vires claim waives immunity if the plaintiff can show that an official’s conduct exceeded their granted authority.  Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).  State agencies, like the University, only have the authority that they are given by statute and may only adopt rules pursuant to their statutory authority.  Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008).  State law gives a University the authority to “award” a degree, but not to revoke one.  Tex. Educ. Code § 65.31(b).  Authority can be implied if the agency needs the power in order to allow the agency to effectively carry out the functions necessary for its expressed authority.  Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192-93 (Tex. 2007).   The Court of Appeals held that the authority to award degrees does not require the authority to revoked degrees, and therefore revoking a degree after a student has earned it and graduated is an ultra vires act waiving sovereign immunity.

The Court also affirmed the trial court’s denial of attorney’s fees from the plaintiff.  Even though the plaintiff prevailed, the legal questions were ones that needed to be decided and an appellate court gives a trial court wide discretion in determining attorney’s fees so long there is no abuse of discretion.

Justice Kelly issued a concurring and dissenting opinion stating that the University does have the authority to revoke a student’s degree, but that the claims are not ripe.

If you would like to read this opinion click here.   Panel consists of Justices Goodwin, Baker, and Kelly. Opinion by Justice Thomas Baker.  Concurring/dissenting opinion by Justice Kelly can be found here.

The U.S. Fifth Circuit Court of Appeals held that sign ordinances cannot treat off-premise and on-premise signs differently if the regulation of such signs includes regulation non-commercial content. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Reagan Nat’l Advertising of Austin, Inc.; Lamar Advantage Outdoor Co. v. City of Austin, No. 19-50354 (5th Cir. August 25, 2020).

In this First Amendment sign case, the U.S.  Fifth Circuit held that the distinction between off-premise and on-premise signs is a prohibited content-based distinction under Reed v. Town of Gilbert if the regulation could include non-commercial content.

The plaintiff sign companies desired to digitize their off-premise signs (billboards) in the City. Their applications were denied by the City because the City prohibits the digitization of off-premises signs, but allows the digitization of on-premises signs.  The City defined off-premises sign as, “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.”  The plaintiffs asserted the distinction between on-premises and off-premises signs was a violation of the First Amendment as a content-based distinction that cannot withstand strict scrutiny.  After the suit was filed, the City amended its sign ordinance.  The City argued that the difference between on-premises and off-premises was content-neutral and that it should only be reviewed under intermediate scrutiny. The trial court held that the ordinance was valid under intermediate scrutiny and the plaintiffs appealed.

There are two levels of scrutiny that are used to review regulations that implicate free speech.  Strict scrutiny is used to review content-based regulations that regulate non-commercial speech.  To pass strict scrutiny, a City must prove that “the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015).  Intermediate scrutiny is used when the content is commercial or if the ordinance is content-neutral.  Centr. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980).  To pass intermediate scrutiny, a City has to prove that the regulation directly advances a substantial government interest and is not more extensive than is necessary to serve that interest.  See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980). Content-based commercial speech may be regulated if it meets an intermediate level of scrutiny.  Id.  Any regulation of speech other than commercial speech must meet strict scrutiny.  Reed, 576 U.S. at  163, (2015)(“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.).

The Court held that the City’s regulation of off-premises signs differently from on-premises signs was not a regulation of commercial speech and was not content-neutral and therefore had to be reviewed under strict scrutiny.  The regulation is content-based because the sign’s content, other than its commercial content, determines whether it falls under a stricter regulation.  The Court held the regulation did not meet the requirements of strict scrutiny and therefore was invalid.  The Court declined to hold whether the lesser level of scrutiny still applied to a content-based regulation that only applies to commercial speech.

If you would like to read this opinion click here.   Panel consists of Judges Elrod, Southwick, and Haynes. Opinion by Justice Jennifer Walker Elrod.

 

Fort Worth Court of Appeals holds trial court lacked jurisdiction involving school district’s disciplinary decision

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This is an interlocutory appeal from the denial of a plea to the jurisdiction filed by Northwest Independent School District.

Plaintiffs sued Northwest ISD on behalf of their minor child, C.R., seeking a temporary restraining order and injunctive relief based on the violation of C.R.’s rights to freedom of speech, freedom of association, and procedural and substantive due process. Parents allege that Northwest ISD enforced its “zero tolerance” policy when a search team found a substance in C.R.’s vehicle that was alleged to be marijuana. Parents utilized the Northwest ISD three-level appeal process. Ultimately, the consequences for C.R was assignment to an alternative school program and exclusion from drill team. Northwest ISD filed a plea to the jurisdiction asserting disciplinary decisions under Chapter 37 of the Texas Education Code could not be appealed.  The trial court granted the temporary restraining order and denied the plea to the jurisdiction.  Northwest ISD appealed.

Regarding discipline, the court held Chapter 37 expressly states such decisions are final and cannot be appealed. Therefore, the trial court lacked jurisdiction to consider Northwest ISD’s decision. The Court then held that “students do not possess a constitutionally-protected interest in their participation in extracurricular activities,” such as drill team. Parents’ claim of a constitutionally protected interest in their monetary investment in drill team was therefore invalid. Regarding the due process claims, the Court held that transferring C.R. to an alternative education program did not deprive C.R. of her right to receive an education. Further, there was no due process violation by infringing on C.R.’s right to her “good name and reputation.” Finally, the Court found the appeal process laid followed by Northwest ISD did not implicate due process violations. As a result, the plea should have been granted.

If you would like to read this opinion click here.  The panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Corpus Christi Court of Appeals held that a plaintiff does not have standing to bring suit, or merit a temporary injunction, where the plaintiff has not alleged an injury distinct from the public at large.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Concerned Citizens of Palm Valley, Inc. v. City of Palm Valley, 13-20-00006-CV (Tex. App.—Corpus Christi, August 13, 2020) (mem.op.).

In this taxpayer suit, the plaintiffs allege that the City is spending money on a private golf course in an unconstitutional manner, but the Court held that the denial of a temporary injunction was appropriate because the plaintiffs failed to show an injury distinct from the general public.

The plaintiffs are a group who oppose the City’s use of funds on a private golf course.  They sued the City under Texas Constitutional Article 3, Section 52 that states that A City cannot spend money on private property.  The plaintiffs sought a declaratory judgment preventing expenditures as well as temporary and permanent injunctions.  The trial court denied the temporary injunction because there was insufficient proof that the City was in violation of the Texas Constitution.  The plaintiffs appealed.  The Court of Appeals affirmed the trial court’s order, but on the ground that the plaintiffs have not alleged standing for its claims.

To present a claim for a declaratory judgment or to be able to be granted a temporary injunction, a plaintiff has to prove an injury distinct from the general public.  Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).  A citizen cannot bring suit against a governmental entity to require it to follow legal requirements if it does not have a separate injury.  While these arguments were not made by the City, the Court of Appeals held that there was insufficient evidence of a particularized injury for standing for the temporary injunction.  The Court affirmed the trial court’s denial of the temporary injunction.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras and Justices Longoria and Hinojosa.  Opinion by Chief Justice Contreras.

Fourth Court of Appeals holds no jurisdiction exists for ex-councilmember to sue after office was declared forfeit for charter violations – quo warranto is exclusive remedy

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City of Leon Valley v Martinez, 04-19-00879-CV (Tex. App. — San Antonio, August 19, 2020)

This is a suit by an ousted city council member to recover his position. The San Antonino Court of Appeals held the exclusive remedy in this situation was a quo warranto lawsuit brought by the State.

After the City received complaints from several City employees about then councilmember Martinez’s conduct, the City Council investigated the complaints pursuant to the city charter. The City Council held several hearings, received testimony from several witnesses, and ultimately determined that Martinez had violated the city charter. The City Council removed Martinez, appointed a replacement, and the replacement was sworn in and began functioning.  Martinez sued asserting he was denied his due process rights and sought a determination of his right to be reinstated.  The City filed a plea to the jurisdiction, which was denied. The City appealed.

The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning the proper person entitled to hold a public office and exercise its functions. The plain and unambiguous language of the quo warranto statute confers standing to lodge such a challenge on the State, not a private litigant. A quo warranto proceeding is the exclusive remedy to test the right of an officer to hold office. Martinez’s attacks on the type of notice he should have been provided and the number of votes required to remove him must be brought by the State.  As a result, the plea should have been granted.

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

 

 

Waco Court of Appeals holds an allegation of overzealous code enforcement actions is inadequate to establish a substantive due process violation when regulations are enforceable.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

House of Praise Ministries, Inc. v. City of Red Oak, Texas, 10-19-00195-CV (Tex. App.—Waco, Aug. 6, 2020).

In this substantive due process case, the Waco Court of Appeals affirmed a trial court’s grant of a plea to the jurisdiction because the plaintiff did not bring any allegations that rose to the level of a substantive due process violation for code enforcement on its property.

The plaintiff is the owner of a piece of property in Red Oak, Texas that was the subject of code enforcement actions including substandard building declaration in municipal court.  The plaintiff initially brought claims for regulatory taking, procedural due process, and substantive due process based on the municipal court case determining that the buildings on its property were substandard.  In an earlier ruling by the trial court and this court of appeals, the regulatory taking and procedural due process claims were dismissed, but the plaintiff was given the opportunity to replead the substantive due process claim. The plaintiff replead the substantive due process claim including allegations that the City’s offered amortization agreement, overzealous code enforcement actions, and premature lis pendens filing violated its substantive due process rights.  The trial court granted the City’s plea to the jurisdiction related to the substantive due process claim.

To present a substantive due process claim, the plaintiff must prove that the government deprived the plaintiff of a constitutionally protectable property interest capriciously and arbitrarily.  City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.—Amarillo 1996, writ denied).  The Court of Appeals held that none of the three allegations met this standard.  The amortization agreement was never entered into by the plaintiff and so did not deprive it of any rights. The Court of Appeals then held that “conclusory allegations that the code enforcement officer enforced the City’s regulations arbitrarily and capriciously are inadequate, standing alone, to support a substantive due process claim.”  The Court also noted that there was no allegation that the regulations themselves were an issue.  Finally, the Court held that a lis pendens filing, which puts potential property purchasers on notice that an action against a property is currently being brought, does not violate substantive due process even if filed prematurely, where no other evidence of capriciousness or arbitrariness in filing the lis pendens.  The Court of Appeals affirmed the trial court’s dismissal of the case.

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

Attorney fees awards in favor of a defendant are not an abuse of discretion where the plaintiff does not make a prima facie case of his claims.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Carl Frederick Rickert, III v. Kayla S. Meade and City of Bonham, 06-02-00002-CV (Tex. App.—Texarkana, July 30) (mem. op.).

In this § 1983 case on an attorney fees award, the Court of Appeals upheld the trial court’s grant of attorney fees in favor of the defendant City because the plaintiff did not establish even a prima facie case.

The plaintiff was terminated from his City employment after a co-worker filed a sexual harassment claim against him based on an allegedly consensual relationship.  The Texas Workforce Commission determined that the sexual harassment claim against the plaintiff was baseless.  The plaintiff sued the City under § 1983 asserting entitlement to a name clearing hearing.  The trial court dismissed the claim for lack of evidence and awarded attorney’s fees to the City.  The plaintiff appealed the attorney fee award.

In order for an attorney fee award to be upheld against a plaintiff in favor of a defendant, it has to be shown that “the plaintiff’s action was frivolous, unreasonable, or without foundation even though not brought in subjective bad faith.”  Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg, 434 U.S. at 421).  The plaintiff’s action was based on the lack of a name clearing hearing after his termination.  A terminated individual has the right to a name clearing hearing where the employee’s “good name, reputation, honor, or integrity” is questioned during a termination.  Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) In this case, the plaintiff provided no evidence that he was denied a name clearing hearing, or that he even requested one. Evidence was presented that he was provided a chance to be heard at a hearing prior to termination.  The Court of Appeals held this lack of evidence was sufficient to show that the trial court did not abuse its discretion.

If you would like to read this opinion click here. Panel consists of Chief Justice Morriss and Justices Burgess and Stevens.  Opinion by Ralph K. Burgess.

U.S. 5th Circuit holds a board reprimand against an elected official for speech on a matter of public concern is an actionable First Amendment claim under § 1983.

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Wilson v. Houston Community College System, 19-20237 (U.S. 5th Cir. April 7, 2020)

This is a First Amendment/§1983 case where a former member of the board of trustees claimed the College censured him in violation of his First Amendment Rights. The U.S. Fifth Circuit Court of Appeals reinstated the plaintiff’s First Amendment claims but sustained the dismissal of his declaratory and injunction claim.

Houston Community College System (“HCC”) is a public college system in the Houston area. HCC is controlled by a board of nine publicly elected trustees, one of whom was Wilson. Wilson publicly chastised HCC on various occasions for its policy decisions and even filed multiple state court lawsuits including one to prohibit videoconferencing votes as being illegal under the bylaws and in excluding him from meetings. The Board of Trustees held a hearing and issued a censure resolution which  chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. Once censured, Wilson brought §1983 claims under the First Amendment, including declaratory and injunctive relief. The trial court granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction due to a non-distinct injury. In August 2019, Wilson resigned. He was not re-elected.

In the context of free speech, “the governmental action need not have a direct effect on the exercise of First Amendment rights . . . [but] must have caused or must threaten to cause a direct injury to the plaintiffs.” The trial court held the censure did not forbid Wilson from performing his official duties or speaking publicly. Disagreeing with the trial court, the 5th Circuit held  Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Further, a free speech violation giving rise to a reputational injury is an injury in fact and properly states First Amendment standing. However, Wilson’s claims for declaratory and injunctive relief regarding the application of the Board’s censure and Code of Conduct are moot given they are no longer live controversies.

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

Fort Worth Court of Appeals analyzes the law-of-the-case doctrine and determines private property owners did not establish claims against a city regarding fee simple land ownership

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City of Mansfield, et al., v Saverings, et al, 02-19-00174-CV (Tex. App. – Fort Worth, July 16, 2020)

In this lengthy opinion, the Fort Worth Court of Appeals holds certain private property owners did not establish a right to declaratory relief regarding fee-simple ownership of lots over which the City exercised some regulatory control, asserting they were public paths.

A developer filed a final plat in Tarrant County, creating a planned housing development—The Arbors of Creekwood – Gated Community (the Development) located in the City, but which had two HOAs. An amended plat divided the lots into R1 and R2 lots. All R2 lots were in the floodplain, which was governed by City ordinance. The developer created a lake and connected jogging paths ending at the lake. The developer testified the paths were for public use.  The boundary line for the R2 lots abutting the lake was to the north of the lake; thus, the lake was not included within the boundaries of these R2 lots. The developer executed a declaration of covenants, conditions, and restrictions (the Declaration) for the Development and filed them in Tarrant County. The Declaration stated the HOAs owned fee-simple title to private streets in the Development and “common properties” which had a complicated definition. In 1997, the Arbors HOA forfeited its right to do business and became a terminated entity. The surviving HOA asserted the Arbors HOA property lots (R2) automatically transferred to it. In January 2012, the City began planning for a “possible future trail connection” to the jogging path. Construction on the bridge began in 2013 and opened on January 25, 2014. Some owners of R1 lots noticed an increase in people using the jogging path and trespassing on the R1 lots. The R1 owners sued seeking a declaration they owned the R2 lots as common properties, and seeking to quiet title The Court of Appeals issued an interlocutory opinion in review of a temporary injunction noting the R2 lots were included in the definition of “common properties.” The R1 Owners also raised claims against the City Defendants for trespass and inverse condemnation.  The City Defendants filed a traditional and no-evidence motion for summary judgment, including arguments that the facts and law had substantially changed since the interlocutory order. They argued the R1 owners did not have a right to possess the R2 lots (which were originally owned by the defunct HOA) and that they did not have a private right to enforce a city ordinance on floodplain development. The trial court denied the City Defendants’ motions and granted the partial summary judgment of the R1 owners. The City Defendants appealed.

The court first went through a detailed analysis of the evidence submitted, objections to the evidence, and what constituted judicial admissions. The court held the law-of-the-case doctrine only applied to claims fully litigated and determined in a prior interlocutory appeal; it did not apply to claims that have not been fully litigated. The law-of-the-case doctrine is flexible and directs the exercise of court discretion in the interest of consistency but does not limit its power.  The interlocutory opinion (which was a complicating obstacle) did not address the R1 Owners’ UDJA claim regarding title to the R2 lots, only a probable right of relief for trespass claims based on an undeveloped record. The court noted they were substantially different arguments, issues, law, and review standards. [Comment: For a good analysis of the doctrine and its boundaries, read this section of the case.]  The City argued the R2 lots owned by the defunct HOA could be distributed only under the terms of the articles of incorporation and could not pass to the live HOA automatically. The court agreed with the City that the R1 owners did not establish a proper conveyance under the articles.

Next the court turned to the floodplain ordinance, where the R1 owners asserted the City failed to follow its own ordinance by obtaining studies before constructing structures in the floodplain connecting the jogging paths. The City Defendants’ argument no private cause of action to enforce the ordinance exists is one of standing. The R1 Owners did not challenge the validity of the ordinance but rather asserted that they wanted a construction of the ordinance and enforcement of it against the City Defendants. The R1 Owners did not have a right to enforce the ordinance through a UDJA claim, which only waives immunity for ordinance invalidation.  Alternatively, under the record, the R1 owners did not establish the City violated the ordinance. The City Defendants proffered summary-judgment evidence raising a fact issue on their substantial compliance.  Finally, since the court held the R1 owners could not bring a UDJA claim, the attorney’s fee award was reversed.

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