Property owner did not allege viable constitutional claim after County granted neighbor development permit

Quote

Stephen Sakonchick II v. Travis County, 03-19-00323-CV (Tex. App. – Austin Oct. 30, 2019).

This is a constitutional challenge to a construction permit where the Austin Court of Appeals affirmed the granting of the County’s plea to the jurisdiction.

Sakonchick owned a home on in a neighborhood known as Bee Creek Hills, in Travis County and the City of Austin’s extraterritorial jurisdiction (“ETJ”). Bee Creek’s only means of vehicular ingress and egress is along Canon Wren Drive.  The Overlook is a real estate development featuring a four-story mixed-use office building on the corner of Bee Cave Road and Canon Wren Drive. The Overlook’s owners applied for a basic development permit to construct a parking garage and a second driveway, which was granted. Prior to it being granted, Sakonchick began calling Travis County to voice his objections. Unhappy that Travis County failed to address his concerns before issuing the permit, Sakonchick sued Travis County and The Overlook’s owners pleading various theories and seeking to enjoin the construction of the garage.  Essentially, Sakonchick claims Travis County denied him due process when it issued the basic development permit without first affording him notice or hearing to object. Travis County filed a plea to the jurisdiction, which the district court sustained after an evidentiary hearing.

As an ostensible property interest, Sakonchick alleges an “ownership of an appurtenant easement” in “the Canon Wren Drive right of way.” But a vested property right is “more than a unilateral expectation” or an “abstract need or desire” on the part of the individual asserting the right. Instead, a vested property right exists when its claimant has “a legitimate claim of entitlement” to the right asserted. He and his neighbors do not, however, have an exclusive right to use Canon Wren Drive to access the neighborhood without encountering traffic or any other inconvenience typically associated with suburban life. Sakonchick did not produce any evidence the proposed parking garage and driveway will jeopardize his ability to access the real property he owns in Bee Creek. Nor has he alleged or produced evidence that the proposed structures will encroach on private property or restrict use of the residential real estate in the Bee Creek neighborhood.  As a result, he has not pled a viable constitutional theory against the County. Further, the record affirmatively negates the existence of jurisdiction over Sakonchick’s claim against Travis County, so Sakonchick is not entitled to replead.  However, the court did modify the dismissal noting it was dismissed “without prejudice” as a dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Kelly and Smith.  Memorandum opinion by Justice Smith. Sakonchick appeared pro se. the attorneys listed for Travis County are Mr. Brian P. Casey, Mr. Patrick M. Kelly, and Ms. Cynthia Wilson Veidt.

Taxpayer lacked standing to challenge Houston drainage fee ordinance despite charter election invalidity

Quote

Elizabeth C. Perez v. Sylvester Turner, et al., 01-16-00985-CV (Tex. App. – Hous. [1st Dist], Oct. 15, 2019)

This is a long standing/multi-opinion dispute challenging the City of Houston’s drainage fee ordinance. Prior summaries found here and here. In this substituted opinion (for an opinion issued in August of 2018), the First District affirmed the granting of the City’s plea to the jurisdiction.

Voters in the City of Houston adopted a dedicated charter amendment for a “Pay-As-You-Go Fund for Drainage and Streets.” It then adopted a regulatory ordinance. One source of funding was a charge imposed on properties directly benefitting from the drainage system. The ballot language for the charter amendment was originally held misleading and invalid. After several disputes from the subsequent ordinance occurred, Perez  brought this ultra-vires claim and sought a judgment declaring the drainage fee ordinance invalid (yet again); an injunction against the assessment, collection, and expenditure of taxes and fees pursuant to the ordinance; and reimbursement, “on behalf of herself and all other similarly situated persons or entities,” of taxes and fees assessed and collected pursuant to the ordinance and paid “under duress.”  The City filed a plea to the jurisdiction asserting Perez lacked standing because she had suffered no particularized injury separate from the public, which was granted. Perez appealed.

The prior judicial declaration that the Charter Amendment is void does not address the Drainage Fee Ordinance. Thus, to the extent that Perez’s claims are based on her allegations the prior opinions invalided the ordinance, such are misplaced. The charter amendment was only needed to shift a portion of ad valorem tax revenue from debt services and was not required for authority to pass a drainage fee ordinance. Local Government Code Chapter 552 provided independent authority for such an ordinance. Perez has pleaded that she paid “illegal” drainage fees, she has cited to no authority declaring illegal the Drainage Fee Ordinance. Further, Perez has to demonstrate she “suffered a particularized injury distinct from that suffered by the general public” by the drainage fees collected.  The municipal fees were assessed to property owners across the City. The payment of municipal fees, like the drainage fees assessed against Perez’s properties here and numerous other properties in the City, does not constitute a particularized injury. Taxpayer standing is an exception to the “particularized injury” requirement.  However, it is not enough for the plaintiff to establish that she is a taxpayer— the plaintiff “may maintain an action solely to challenge proposed illegal expenditures.” A litigant must prove that the government is actually expending money on the activity that the taxpayer challenges; merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough.  Perez asserts the fees were collected illegally.  However, she was unable to establish the City is actually making any “measurable, added expenditure” of funds on illegal, unconstitutional, or statutorily unauthorized activities. As a result, she is not entitled to taxpayer standing. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Lloyd and Justice Kelly. The attorneys listed for the City are Collyn A. Peddie and Patricia L. Casey.  The attorneys listed for Perez are Dylan Benjamen Russell, Andy Taylor  and Joseph O. Slovacek.

Firefighter’s claims against City dismissed since no adverse employment actions occurred; only minor internal decisions

Quote

Billy Fratus v. The City of Beaumont, 09-18-00294-CV (Tex. App. – Beaumont, Oct. 10, 2019).

This is an employment discrimination/retaliation/firefighter case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Fratus was a firefighter who sued for 1) free speech equitable relief and 2) race discrimination and 3) retaliation under Chapter 21 of the Labor Code.  Fratus asserted the Fire Chief, Huff, did not like Fratus was Hispanic and excluded him from meetings, denied him discretionary perks of the job, spoke bad about him, interfered with Fratus’ relationship with his physician while on disability leave, and a host of other assertions centering on personality slights. Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff’s sexual harassment of another employee, and for disagreeing with Chief Huff’s firing of one employee. The City filed a plea to the jurisdiction which was granted. Fratus appealed.

Fratus’ claims for declaratory relief centered only on past allegations.  As a result, it is actually a claim for monetary damages for which the City is immune. Further, claims for equitable relief for constitutional violations “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.” Since Fratus did not sue any individuals, the equitable relief claims are dismissed. To prevail on a retaliation claim based on protected free speech Fratus has to establish, among other things, he spoke out on a matter of public concern. Speech made privately between a speaker and his employer rather than in the context of public debate is generally not of public concern. The record shows Fratus made criticisms to other co-workers, which does not qualify. A retaliation claim is related to but distinct from a discrimination claim, and it focuses upon the employer’s response to the employee’s protected activity. The TCHRA addresses only “ultimate employment decisions” and does not address “every decision made by employers that arguably might have some tangential effect upon employment decisions.”  Actionable adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment evaluations.  The pleadings and record reflect Fratus did not allege any adverse employment decisions, only petty disagreements and internal rifts. Fratus failed to plead a prima facie claim. Fratus’s appellate brief states that he also has an issue under the Texas Open Meetings Act.  However, such does not meet briefing requirements because it lacks citations to the record or to applicable authority and therefore presents nothing for review. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson. Opinion by Justice Johnson.  The attorney listed for Fratus is Laurence Watts.  The attorneys listed for the City are Tyrone Cooper and Sharae Reed.

Beaumont Court of Appeals holds firefighter’s last-chance agreement in collective bargaining city deprived trial court of jurisdiction to hear appeal of indefinite suspension

Quote

 

Michael Scott Nix v. City of Beaumont, 09-18-00407-CV (Tex. App. -Beaumont – Oct. 3, 2019)\

This is an interlocutory appeal in a firefighter suspension case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. He asserted the Collective Bargaining Agreement (“CBA”) was invalid because the City allegedly failed to comply with the Texas Open Meeting Act (“TOMA”) requirements when the CBA was negotiated.  He also asserts the “last chance” agreement he entered into with the Fire Chief was invalid. Nix’s last-chance agreement probated part of the suspension, but noted he could be terminated if he violated any terms of the agreement.  Nix’s suspension in 2015 resulted in the last-chance agreement and the Chief determined he violated the sick leave policy in 2017 resulting in an indefinite suspension. Nix asserts in the absence of a valid contract, the suspensions were invalid, depriving him of due process of law and a protected property interest. The City filed a plea to the jurisdiction, which was granted.  Nix appealed.

TOMA has a limited waiver of immunity. An action taken in violation of TOMA is voidable, not void. When a department head suspends a firefighter for violating a civil service rule, the suspension may be for a reasonable period not to exceed fifteen calendar days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b). The firefighter may accept the suspension or appeal to the Civil Service Commission. If the firefighter disagrees with the Commission, the employee may file suit in district court. The question of whether the City posted the CBA 2012-2015 negotiations in accordance with TOMA is not relevant because it is the CBA 2015-2020 CBA applicable to his underlying challenge to his indefinite suspension in 2017.  The City provided evidence showing proper postings for the negotiation of the 2015-2020 CBA.  When Nix accepted the last-chance agreement in 2015, he had the opportunity to refuse the Chief’s offer and appeal his suspension to the Commission; however, Nix agreed to waive his right to appeal, including the right to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement. Nix waived all rights he may have to file suit against the City as to any issue directly or indirectly related to the last-chance agreement or to his indefinite suspension.  As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson.  Opinion delivered by Chief Justice McKeithen. The attorneys listed for Nix are Melissa Azadeh and Laurence Watts.  The attorneys listed for the City are Sharae Reed and Tyrone Cooper.

12th Court of Appeals holds a regulatory civil enforcement suit did not constitute a taking by a conservation district

Quote

Neches and Trinity Valleys Groundwater Conservation District v. Mountain Pure TX, LLC  12-19-00172-CV (Tex. App. – Tyler, September 18, 2019).

This is a regulatory takings/compliance enforcement case where the Tyler Court of Appeals reversed the denial of a conservation district’s plea to the jurisdiction and dismissed the property owner’s counterclaims.

The District adopted  rules requiring all persons owning a groundwater well to obtain permits to drill and operate the well unless exempt. Mountain Pure owns a spring water bottling plant in Palestine, Texas. Mountain Pure refused to acknowledge that it owns or operates a water well, refused to apply for a permit to operate a water well, failed to file quarterly production reports or pay quarterly production fees and overall refused to acknowledge the District’s authority. Mountain Pure took the position its water came from an “underground formation from which water flows naturally to the surface of the earth.”  Therefore, the District has no authority to regulate spring water. The District filed a compliance suit against Mountain Pure to which Mountain Pure counter-claimed for tortious interference with their lucrative operating contracts and also asserted a takings claim.  The District filed a plea to the jurisdiction as to the counterclaims which was denied. The District appealed.

Governments must sometimes impose restrictions on and regulations affecting the use of private property in order to secure the safety, health, and general welfare of its citizens.  Although those restrictions and regulations sometimes result in inconvenience to owners, the government is not generally required to compensate for accompanying loss.  However, if regulations go too far, they will be recognized as a taking.

A civil enforcement procedure alone cannot serve as the basis of a regulatory takings claim. A denial of access is compensable if the denial of access is substantial and material. Mountain Pure does not contend that the District’s rules and regulations it seeks to enforce are unconstitutional or otherwise invalid. But it maintains that the District is wrongfully attempting to apply them to its property. The record shows that Mountain Pure’s Palestine plant, after the government action, retains a value of $4,090,000. Mountain Pure cannot contend that the District’s action renders its property valueless. The loss of anticipated gains or future profits is not usually considered in a regulatory takings analysis. “The existing and permitted uses of the property constitute the ‘primary expectation’ of the landowner affected by regulation.”  There is no pleading or evidence which show that the application of the groundwater rules, should they be held to apply, will interfere with production and sale of bottled water from the property. If the District is successful, the enforcement of the production reporting rules would represent a restriction on the property’s use. There is no pleading that the imposition of a three cent per 1000 gallons fee will be so onerous as to affect the present use of the property or significantly diminish its economic viability.  Neither a diminution in property value nor a “substantial reduction of the attractiveness of the property to potential purchasers’ will suffice to establish that a taking has occurred.” Neither the District’s rules nor its attempt at their enforcement has deprived Mountain Pure of any reasonable investment backed expectation for bottling water.  There is no showing that the enforcement of the reporting rules and the accompanying fee will affect production. Mountain Pure’s pleadings do not contain facts that allege a compensable denial of access, nor do they show how the District’s suit forced a cessation of operation. The operating lessee’s termination of its lease purchase operating agreement may have been influenced by the District’s civil enforcement suit. But there are no facts pleaded to show it was required by the District’s action. The District’s suit neither denied access to the spring nor prevented its operation. The court held “[i]t is impossible to avoid the conclusion that Mountain Pure’s inverse condemnation claim is no more that its dismissed tortious interference claim thinly disguised as a taking.”  However, no taking has occurred under the facts. No waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Worthen, C.J., Hoyle, J., and Bass, Retired, J., Opinion issued by Justice Bass.  The attorney listed for the district is  John D. Stover.  The attorneys listed for Mountain Pure are Danny R. Crabtree and Jeffrey L. Coe.

Developer properly pleaded claims County failed to maintain roadways, Fort Worth Court of Appeals says

Quote

Wise County, et al v. Katherine Mastropiero02-18-00378-CV (Tex. App. – Fort Worth, August 9, 2019)

In this case, the Fort Worth Court of Appeals held that the district court had jurisdiction to hear a property owner’s claims the County must maintain roads in her subdivision.

Mastropiero (the developer) began to develop Prairie View Estates, a subdivision in Wise County. In Phase Two of the subdivision, the county refused to maintain the roadways. The plat described several roads and stated that the roads were “dedicate[d] to the public.” Mastropiero alleged that the owners, residents, and members of the public have used the roads continuously ever since. The final plat was then endorsed and filed in the County’s records.  Mastropiero asserted she did not have to file a maintenance bond after the  County accepted the roads but that the County was required to maintain the roads. She sued for a failure to maintain, and the County filed a plea to the jurisdiction, which was denied.

Article V, § 8 of the Texas constitution provides that the district court has supervisory jurisdiction to review certain actions of the County Commissioners Court. Mastropiero has alleged that the Commissioners Court failed to perform a clear statutory duty.  The County asserted it never “accepted” the dedication and thus has no statutory duty. Recording a map or plat showing streets or roadways does not, standing alone, constitute a completed dedication as a matter of law. But acceptance does not require a formal act; implied acceptance is also sufficient, including use of the roads by the public. The determination of whether a dedication has been accepted is a question of fact. As a result, from a jurisdictional standpoint, Mastropiero properly pleaded a cause of action against the County. Additionally, the suit against a single commissioner, but only in her official capacity, is the same as a suit against the County. A suit to compel prospective action is viable in an ultra vires suit, as is raised here.  The plea was properly denied.

If you would like to read this opinion, click here. Panel consists of Justices Birdwell, Bassel and Womack. Memorandum opinion by Justice Birdwell. The attorney listed for the County is James Stainton. Ms. Mastropiero appeared pro se.

U.S. 5th Circuit holds deputy entitled to qualified immunity on state-created-danger claims, but not wrongful arrest claims

Quote

Keller v. Fleming, 18-60081(5th Cir. July 23, 2019)

In this §1983 case, the U.S. 5th Circuit reversed the denial of an officer’s qualified immunity defense for a state-created-danger claim but affirmed denial based on unlawful arrest claims.

Gerald Simpson was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness after Simpson had been dropped off at the county line by Sheriff’s Deputy Darrin Fleming.  Simpson was originally stopped while walking down the roadway, but his speech was unintelligible.  The Plaintiffs alleged Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. The submitted evidence establishes Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Fleming drove Simpson in that direction to the point he reached the end of Attala jurisdiction and let Simpson out.  Fleming was not aware Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. The family sued Fleming and the County and Fleming filed a motion for summary judgment arguing qualified immunity.  The motion was granted in part and denied in part. Fleming appealed.

The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause.” A police officer may approach a person for purposes of investigating possible criminal behavior (i.e. Terry stop). The court determined a reasonable person in Simpson’s position would not have felt free to leave. The transport was also not reasonable given the circumstances. The seizure was not for Terry stop purposes and was significantly more intrusive than a brief detention for identification or investigatory purposes.  It also was law previously established which Deputy Fleming should have known. As a result, it was proper to deny qualified immunity for the Fourth Amendment claim.

Next, for Fourteenth Amendment purposes, as a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. An exception exists in other circuits for a “state-created-danger” theory where the entity and plaintiff are in a special relationship. However, a “special relationship” only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order.  The law was not clearly defined at the time to allow Deputy Fleming to know it might apply. The Fifth Circuit has never recognized this “state-created-danger” exception. As a result, the Fourteenth Amendment claims should have been dismissed. Finally, Plaintiffs have not demonstrated a clearly established substantive due process right on the facts they allege.

If you would like to read this opinion click here. Panel consists of Chief Judge Stewar, Judges Willett and Dennis.  Opinion by Justice Dennis.

Eight Amendment Excessive Fine Prohibition applicable to the states through 14th Amendment says U.S. Supreme Court

Quote

 

Timbs v Indiana, 17-1091 (U.S. February 20, 2019).

Tyson Timbs plead guilty to controlled substance and conspiracy to commit theft. At the time of his  arrest, the police seized a vehicle Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of the vehicle, which value was four times the maximum monetary fine for the offenses. The Indiana Supreme Court held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions.

The Court held the prohibition in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.”  Indiana argued the Clause does not apply to its use of civil in rem forfeitures because the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. However, the Court noted the trial court did not address the Clause’s application to civil in rem forfeitures and the Indiana Supreme Court only held the Clause was inapplicable to the states through the 14th Amendment.  The Court held the 14th Amendment makes applicable the Excessive Fines Clause, and the Court declined to separate out whether it was for criminal or civil forfeiture purposes.

If you would like to read this opinion click here. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

U.S. Supreme Court holds Clearly Establish Prong of qualified immunity defense must not be defined with a high degree of generality.

Quote

City of Escondido v Emmons, 17-1660 (U.S. January 7, 2019)

City of Escondido police received a domestic violence 911 call from Maggie Emmons. Officer Jake Houchin responded to the scene and reported Emmons had sustained injuries caused by her husband. The officers arrested her husband. Several weeks later, another domestic violence call was placed, but this time it was called in by mother of Emmon’s roommate, Douglas (who was not present at the apartment). Officer Houchin again responded. The body cameras revealed that when trying to gain entry, a man in the apartment also told Emmons to back away from the window and not let the officers in. Shortly afterwards a man exited the apartment and tried to move past the officers. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. He was arrested for a misdemeanor offense of resisting and delaying a police officer. The man turned out to be Emmon’s father, who sued for wrongful arrest.  The officers filed for qualified immunity, which the trial court granted but the U.S. 9th Circuit reversed.

The U.S. Supreme Court broke apart the 9th Circuit’s analysis and questioned the lack of reasoning within the opinion. The Ninth Circuit’s entire relevant analysis was simply “The right to be free of excessive force was clearly established at the time of the events in question.”  The Supreme Court held “With respect to Sergeant Toth, the Ninth Circuit offered no explanation for its decision. The court’s unexplained reinstatement of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Emmons ‘fail[ed] to identify contrary evidence.’”  The 9th Circuit errored as the Supreme Court has repeatedly told courts the clearly established right must be defined with specificity. Courts may not define clearly established law at a high level of generality. “In this case, the Court of Appeals contravened those settled principles. The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”  The opinion is reversed and remanded for further analysis.

If you would like to read this opinion click here. Per Curiam opinion.

U.S. Supreme Court holds 1st Amendment retaliatory arrest claim barred because probable cause exists and plaintiff has no objective evidence of retaliatory motive

Quote

Nieves, et al., v Bartlett, 17–1174 (May 28, 2019)

In this First Amendment/retaliatory arrest/§1983 case the U.S. Supreme Court held the presence of probable cause eliminates the First Amendment claims as a matter of law. [Comment: warning this is a 48-page set of opinions, concurrences and dissents].

Bartlett was arrested by police officers Nieves and Weight for disorderly conduct and resisting arrest during a winter sports festival in Alaska. During the event Nieves and Weight were separately speaking with individuals at the festival about various law enforcement aspects when Bartlett approached each and interfered with the questioning of patrons. Due to the fact Bartlett appeared intoxicated, after the second time Bartlett allegedly interfered, he was arrested. It was also during this second instance that Bartlett allegedly aggressively attempted to physically intimidate one officer by stepping into his personal space and yelling at him. Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The U.S. Court of Appeals for the Ninth Circuit reversed and the officers appealed.

As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.  It is not enough to show that an official acted with a retaliatory motive. The motive must cause the injury under a “but-for” analysis.  The analysis is complex as it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff ’s potentially criminal conduct.  Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.  After a highly detailed analysis of common-law and current precedent, the Court concluded the proper test was an objective standard test, which is resolved if the officers had probable cause to make an arrest.  The subjective intent of the officers is therefore taken out of the analysis.  However, the Court adopted an exception for “minor” offenses which allows a plaintiff to present objective evidence others similarly situation for these minor offenses are not arrested.  Because there was probable cause to arrest Bartlett and he presented no objective evidence others in his situation were not, his retaliatory arrest claim fails as a matter of law.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II–D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.

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

Quote

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 that 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 that 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 pension board’s amendment 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’s 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 amendment to the changed interest rate was unconstitutional. The trial court and appellate court denied petitioners relief.

After analyzing the text of Section 66 and the uncontested facts asserted, the Court held that reducing 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. Accrued 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 err 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.

Texas Open Meetings Act section held unconstitutional by Texas Court of Criminal Appeals

Quote

State of Texas v Craig Doyal, PD-0254-18 (Tex. Crim. App. – February 27, 2019)

In this criminal case, the Texas Court of Criminal Appeals held unconstitutional the provision of the Texas Open Meetings Act (“TOMA”) regarding circumventing the Act by meeting in numbers of less than a quorum.

The Montgomery County judge, a member of the Commissioner’s Court, was indicted for allegedly attempting to circumvent TOMA regarding a local county road issue.  Doyal filed a motion to quash the criminal charge, challenging the constitutionality of the circumvention provision.  The trial court dismissed the complaint but the Court of Appeals reversed, holding the TOMA provision was constitutional. Doyal appealed.

The Court first disagreed with the State’s position and held the statute regulates speech, not simply conduct. The definition of “meeting” requires a deliberation or exchange of information, which is speech. For purposes of TOMA, the statutory act of engaging in a “meeting” is communicative.  Next, the Court held when a vagueness challenge involves the First Amendment, a criminal law may be held facially invalid even though it might not be unconstitutional as applied to the defendant’s conduct. To pass constitutional muster, a law that imposes criminal liability must be sufficiently clear (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) to establish determinate guidelines for law enforcement.  When the law implicates First Amendment freedoms, it also must be sufficiently definite to avoid chilling protected expression. What renders a statute vague is the “indeterminacy of precisely what” the prohibited conduct is. Under § 551.143, a person commits an offense if the person “knowingly conspires to circumvent TOMA by meeting in numbers less than a quorum for the purpose of secret deliberations ….”  The Court found it difficult to support the provision, since TOMA applies only when a quorum is present but the crime is committed when a quorum is not present. Further, the phrase “knowingly circumvent” does not focus on real-world conduct and is a catch-all provision in the abstract. As a result, the provision was held unconstitutional on its face.

The concurring opinion disagreed the statute was vague and simply reasoned the statute impermissively violated the First Amendment.  The dissent disagreed with both the vagueness and First Amendment analysis.

If you would like to read this opinion, click here. Concurring opinion by Justice Slaughter found here. Dissenting opinion by Justice Yeary found here.

14th Court of Appeals holds $25 finance charge on criminal fines is facially unconstitutional

Quote

Devlon Johnson v State of Texas, 14-18-00273-CR (Tex. App. – Houston [14th Dist.], February 5, 2019, no pet. h.)

In this criminal case, the 14th Court of Appeals held facially unconstitutional a provision of the Texas Local Government Code regarding the amount of court fees that a criminal defendant can be required to pay upon conviction. This applies to all levels of criminal fines, from municipal court up to felony charges in district court. All other fees were upheld as constitutional.

Johnson asserts he pleaded guilty to a criminal charge for possession of cocaine in an amount less than 1 gram. At sentencing, he was ordered to pay an itemized listing of court costs. The costs assessed were a Sheriff’s fee, Capias Warrant fee, District Clerk fee, Jury Service Fund fee, Basic Criminal Legal Services fee, Administrative Transaction fee, and a $25 Time Payment fee for paying the judgment after 30 days. According to the opinion, Johnson challenged the facial constitutionality of the court cost charges and therefore appealed the sentence.

The State asserted the challenge to the constitutionality of the court costs was not presented to the trial court. However, the opinion did not address the consideration by the trial court, as it was a facial challenge.  The panel went through the constitutional standards applicable to criminal court fees.  For a facial-challenge analysis regarding court costs, courts will consider only applications the statute actually authorizes or prohibits, not how or where the collected fees might actually be spent. Two types of court-cost statutes pass constitutional muster: (1) statutes under which a court recoups expenditures necessary or incidental to criminal prosecutions; and (2) statutes providing for an allocation of the costs to be expended for any legitimate criminal justice purpose. The court analyzed each fee and determined all but the $25 Time Payment fee was constitutional. The Time Payment fee is a fee of $25 if the person pays “any part of a fine, court costs, or restitution on or after the 31st day after the date on which a judgment is entered assessing the fine, court costs, or restitution.” Tex. Loc. Gov’t Code § 133.103(a). The court viewed this as is simply a late fee assessed when a person convicted of a felony or a misdemeanor and takes longer than 30 days to pay a fine.  The court held that 90% of the fee is facially unconstitutional because it requires the funds be deposited into a general fund without limitation or restriction.

If you would like to read this opinion, click here. Panel consists of Justices Wise, Jewell, and Poissant. Opinion by Justice Jewell. The attorney listed for Johnson is Justin Bradford Smith. The attorneys listed for the state are Stacey M. Soule, Bob D. Odom, and Henry L. Garza.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.