U.S. Fifth Circuit holds standing for First Amendment violation can be shown through chilled speech without the need for actual arrest or citation.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Anthony Barilla v. City of Houston, Tex., No. 20-20535 (5th Cir. Sept. 10, 2021).

In this appeal for dismissal for lack of standing by the district court, the U.S. Fifth Circuit reversed and remanded the district court’s order, holding that the intention to engage in busking (playing music for tips) plus the ordinance regulating the activity was sufficient to show standing on his First Amendment claim.

The plaintiff sued the city after his busking permit to play music for tips expired. He desired to busk in other parts of the city but was kept from doing so based on the need to get a permit and the ordinance that prohibits busking in most areas of the city.  He chose not to busk but instead to file suit against the city.  The city argued that the plaintiff had not proved an actual injury or standing because he had not been arrested, denied a permit, or cited for busking.  The district court granted the city’s motion to dismiss based on the plaintiff’s lack of standing.

To prove standing, a plaintiff must demonstrate an injury in fact by showing that the plaintiff: (1) has the serious intention of engaging in conduct that affects a constitutional interest; (2) that the conduct is regulated or prohibited; and (3) the threat of enforcement against the conduct is substantial.  Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).  Both music and solicitation for times are constitutionally protected.   See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).  Standing existed in this case because the plaintiff had shown a serious intention to busk as he had engaged in the activity previously, and the activity of busking is constitutionally protected.  The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s dismissal and remanded for further review on the standing issue.

The court of appeals reversed and remanded the district court’s dismissal on the basis of standing because the plaintiff provided sufficient evidence of a serious interest in engaging in constitutionally protected activity that is being regulated/prohibited by the city.

If you would like to read this opinion, click here.   Panel consists of Chief Judge Owen and Judges Clement and Higginson.  Opinion by Judge Stephen A. Higginson.

Tyler Court of Appeals holds a motion for new trial did not extend the time to perfect an accelerated appeal

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SignAd, Ltd. V. The City of Hudson, 12-21-00056-CV, (Tex. App – Tyler, Sept. 15, 2021)

This case is mainly procedural, and the Tyler Court of Appeals held SignAd failed to timely file its notice of appeal, either as an interlocutory appeal or of a final judgment.

This is a billboard construction case where the City sought injunctive relief and civil penalties asserting SignAd violated its local ordinances. SignAd asserted counterclaims for declaratory judgment, compensation for loss of the billboard if ordered to remove it, inverse condemnation, unenforceability of the ordinance against SignAd, and 42 U.S.C. § 1983. The trial court issued various orders but the order of contention is a January 19, 2021 order granting the City’s first amended motion to dismiss for lack of subject matter jurisdiction. The parties disagree as to whether the January 19th order was a final order or is interlocutory. The order contained various findings including that SignAd lacks standing to bring its counterclaim for declaratory judgment, SignAd’s billboards exceed the size limitations for commercial signs, and that SignAd cannot maintain its billboards under the ordinance even if it achieved a total victory in this case.

The court of appeals held if the order is an appealable interlocutory order, the notice of appeal was due to be filed within twenty days after the judgment or order was signed, i.e., February 8.  SignAd filed its notice of appeal on April 13th.  SignAd’s motion for a new trial did not extend the time to perfect an accelerated appeal. But even if not interlocutory a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days after the judgment is signed if any party timely files a motion for new trial. However, any motion for new trial was due to be filed by February 18. SignAd filed its motion for new trial on February 22. The certificate of service attached to the motion for new trial reflects that it was served on February 16; however, the motion is file marked February 22. Thus, the motion was late and did not extend the time for filing the notice of appeal.  And an “order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period.”  As a result, the court of appeals dismissed the appeal for want of jurisdiction.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Dismissed for Want of Jurisdiction. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

13th Court of Appeals holds City sufficiently complied with TOMA and Tax Code in 2019 when it adopted its annual tax rate

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Leftwich v City of Harlingen, 13-20-00110-CV (Tex. App. – Corpus Christi, Sep. 9, 2021).

This is a declaratory judgment suit to declare the city violated procedural requirements when it adopted its tax rate in 2019. The Thirteenth Court of Appeals held no alleged violation constituted a waiver of the City’s immunity.

Leftwich alleges the City violated several statutory requirements in 2019 when it adopted its tax rate, including (1) the published notice failed to conform to the “date, time[,] and location” requirements of Texas Local Government Code § 140.010(c),  (2) the City failed to meet the deadline to adopt the tax rate (requiring a vote on proposed tax rate “not be earlier than the third day or later than the [fourteenth] day after the date of the second public hearing”); (3) the City violated TOMA by not allowing public comment “before or during” the consideration of the of the tax ordinances and various other procedural deficiencies. The City filed a plea to the jurisdiction, which the trial court granted. Leftwich appealed.

The court first noted that TOMA’s waiver of sovereign immunity only extends to mandamus or injunctive relief for actual or threatened violations of TOMA, not to suits for declaratory relief.  Further, under TOMA, substantial compliance is sufficient. The location of a meeting may be sufficient without including the full street address, name of the city, or meeting room, so long as the notice sufficiently apprises the public of the location.  Here, the term “town hall” sufficiently put the public on notice of the location of the meeting. No general waiver of immunity exists under the UDJA.  Plaintiff sought a judgment “declaring that the[o]rdinances are invalid and void ab initio” due to appellees’ alleged TOMA and tax code violations. The alleged TOMA violation during the meeting focused on the City Council not taking public comments before voting on the first reading of the tax ordinance. However, the mayor was clearly heard on camera, prior to the final vote on the first reading of each ordinance, asking for discussion, to which no one responded. Assuming, arguendo, that the mayor’s call for discussion was not clearly directed to the public, Leftwich would remain unsuccessful as that was only the first reading. The ordinance was not adopted until the second reading. Only an action taken in violation of TOMA is voidable.  Under the tax code, no requirement exists that two publications exist for public hearings, only that two public hearings are held and that notice is published. Under § 26.06(e) of the Texas Tax Code, the City was required to hold a meeting to vote on the tax ordinances not “earlier than the third day or later than the [fourteenth] day after the date of the second public hearing.” However § 26.06(e) provides no authority for a court to enjoin the collection of taxes for failure to comply with § 26.06(e), which is what Plaintiff seeks.  Plaintiff further asserts the councilmember making the motion failed to follow the specific quoted language for the motion contained within the statute. However, after reviewing the record, the court concluded the motion followed the important parts of the statutory language, verbatim.  Leftwich next asserted the City failed to properly post the necessary tax information on the City’s website.  However, Leftwich failed to present evidence that would raise a fact issue as to whether the City previously posted the notice to the website. The court concluded the undisputed language which was present meets the requirements of Texas Tax Code § 26.05(b)(2), which requires the notice be published after the ordinance is adopted. Leftwich failed to allege jurisdiction under TOMA or the Tax Code for any alleged violation.  Finally, while Plaintiff attempts to bring a First Amendment claim, he failed to brief the claim and therefore waived it.

If you would like to read this opinion click here.  Panel consists of Justices Benavides, Hinojosa and Silva. Memorandum opinion by Justice Silva.

Dallas Court of Appeals holds trial court had jurisdiction for BOA appeal only, but no monetary or constitutional claims could survive the board’s plea

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City of Dallas, et al v. PDT Holdings, Inc., et al. 05-21-00018-CV  (Tex. App. – Dallas, August 24, 2021).

This is an appeal from a board of adjustment decision where the Dallas Court of Appeals reversed in part and affirmed in part.

PDT Holdings, Inc (“PDT”) applied for a permit from the City to build a duplex on its property in Dallas.  PDT submitted building plans, which were approved and began construction. However, a City inspector cited PDT and issued a stop work order on the grounds that the structure did not comply with the thirty-six-foot height restriction. PDT adjusted the plans down to 36 feet, but was then told the actual height restriction was twenty-six feet due to the residential proximity slope (RPS) ordinance after it had completed 90% of the construction.  PDT sought a variance for the height restriction (three story duplex) but the variance was denied by the board of adjustment (“BOA”).  PDT appealed to district court but also sought a variety of monetary damages caused to the project. The matter was temporarily abated by agreement and the parties resubmitted to the BOA (with all new members), which again denied the request. The BOA filed a plea to the jurisdiction which was denied. The BOA appealed.

A district court has subject matter jurisdiction only to decide whether the Board’s decision was illegal under section 211.011.  The BOA argued the original appeal to district court was timely but attempted to assert PDT had to appeal the 2nd denial and failed to do so. The Board cites no authority for this requirement other than the general requirement that a petition for writ of certiorari must be filed within ten days of the Board’s decision. The court held the second BOA decision did not change the substance of the controversy between the parties or the issues before the trial court.  Further, nothing demonstrates the trial court lost jurisdiction over the first decision, over which it would still be allowed to proceed. As a result, the trial court properly denied the plea as to the illegality question only. The court next held that it must evaluate jurisdiction based on each claim. PDT did not specify what cause of action entitled it to recover damages or cite express authority waiving governmental immunity for recovery of damages. The plain language of section 211.011(f) does not authorize an award of damages. Further, there is no implied right of action to recover money damages for violation of the due course-of-law provision of the Texas Constitution. The Texas Constitution authorizes suits for equitable or injunctive relief only. But this limited waiver of immunity exists only to the extent the plaintiff has pleaded a viable constitutional claim. The court agreed with the BOA that PDT  does not have a vested property right in obtaining a variance from the RPS ordinance.  The mere existence of a building permit does not render an ordinance unenforceable. A person does not acquire a vested right in a building permit issued in violation of an ordinance. Here, jurisdiction exists for judicial review of the Board’s decision under section 211.011 only. The plea should have been granted for all other claims.

If you would like to read this opinion click here.  Panel consists of Justices Nowell, Osborne and Pederson. Opinion by Justice Nowell.

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices

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Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

If you would like to read this opinion click here. Panel consists of Justices Chapa, Rios, and Rodriguez. Memorandum opinion by Justice Rodriguez.

Property owners around lake drained by GBRA had no standing to sue as they possessed no particularized injury

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Jimmy and Cheryl Williams, et al. v. Guadalupe-Blanco River Authority and its Officers and Directors, 04-20-00445-CV, (Tex. App. – San Antonio, July 7, 2021)

This is a takings case where the San Antonio Court of Appeals partially reversed and affirmed the trial court’s judgment on Guadalupe-Blanco River Authority’s (“GBRA”) plea to the jurisdiction in takings suit. The trial court granted GBRA’s plea to all claims except the property owners’ takings claims after GBRA drained lakes around their properties.

Six hydroelectric dams (“Hydro Dams”) were privately constructed between 1928 and 1932 and put in service in the Guadalupe River Valley in Comal, Guadalupe, and Gonzales Counties. Construction of the hydro dams resulted in the formation of six lakes: Meadow, Placid, McQueeney, Dunlap, Wood, and Gonzales. In 1963, GBRA acquired the six hydro dams. Spill gates at two of the hydro dams failed draining both Lake Wood and Lake Dunlap. As a result of the deterioration of the hydro dams and respective spill gates, GBRA announced its intent to perform a “systematic drawdown” of the remaining four lakes, beginning at Lake Gonzales and then moving upstream to Meadow Lake, Lake Placid, and Lake McQueeney. Appellants—owners of properties adjacent to the lakes—sued GBRA (and its officers in their official capacities) for injunctive relief to prevent the announced drawdown, declaratory relief, and damages based on diminished property values.

GBRA asserted that the property owners lacked standing because they could not demonstrate a particularized injury.  Standing requires a plaintiff to establish: (1) the plaintiff’s claimed injury is “both concrete and particularized and actual and imminent, not conjectural or hypothetical”; (2) the injury is “fairly traceable to the defendant’s challenged action”; and (3) “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

The Court of Appeals reversed the trial court’s denial of the plea as to the taking claims, finding that the property owners could not demonstrate a particularized injury apart from the community at large absent ownership of a property right in the hydro dams, the lands underneath the lakes, or the water itself. As a result, the Court of Appeals dismissed the sole remaining claim against GBRA.

Panel consists of Justices Alvarez, Chapa, and Valenzuela. Memorandum Opinion by Justice Valenzuela can be read here. Docket page with attorney information found here.

Trespass to try title claims failed to waive immunity, but court remanded to allow further pleading attempts

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City of San Antonio v. Albert Davila, Individually; Madeline Davila, Individually; and Albert Davila as Trustee of the Albert Pena Davila and Madeline Davila Living Trust, 04-20-00478-CV, (Tex. App – San Antonio, August 4, 2021)

This is a trespass to try title case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction but remanded to allow Plaintiff the ability to replead.

The Davilas sued the City in a trespass to try title action. The Davilas alleged that, as part of closing and abandoning 12th Street and conveying parcels to adjoining landowners in 1987, the City deeded the subject property to the Davilas’ parents. Alternatively, they allege they adversely possessed the property. The City filed a plea to the jurisdiction asserting the City issued a quick claim deed to Davila’s parents and the deed recites the City passed an ordinance authorizing the sale of the property to the Davilas’ parents. The quitclaim deed also contains a metes-and-bounds description of the subject property and reserves a utility easement. The trial court denied the plea and the City appealed.

When a city is sued in a trespass to try title action based on adverse possession, governmental immunity is not waived, and the trial court lacks subject matter jurisdiction. As a result, the claims, as alleged, do not waive immunity. The Davilas argue section 16.005 of the Texas Civil Practice & Remedies Code waives the City’s governmental immunity, which relates to road closure ordinances. The Davilas did not request relief from the City’s ordinance under Chapter 16, which authorized the sale or abandonment of property, but from the quitclaim deed itself. It does not waive immunity. However, the plea attacks the pleadings only. The City’s brief does not argue or explain why the pleading defect—suing the City instead of government officials for ultra vires acts—is incurable. As a result, the Davilas must be given the opportunity to amend their pleadings.

Panel consists of Chief Justice Martinez, and Justices Chapa and Valenzuela. Reversed and remanded. Memorandum Opinion by Justice Chapa can be read here. Docket page with attorney information found here.

 

Junk vehicle owner failed to establish ownership in municipal court, so was not entitled to sue for taking in later suit

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Jane Vorwerk v. City of Bartlett and John Landry Pack, Mayor, 03-21-00001-CV, (Tex. App – Austin, August 6, 2021)

The Bartlett Municipal Court declaring a 1986 Toyota mobile home to be a junk vehicle. The municipal court found that defendant James Fredrick Hisle was the owner or person in lawful possession of the mobile home, he was properly notified and appeared in person before the court, and he was afforded ample time to remove the mobile home from his property under Ordinance. It was also declared to be a public nuisance. The court ordered removal and if Hisle did not remove it the City could.  Vorwerk filed suit in justice court asserting she owned the vehicle and the City committed a taking. The City’s filed a plea to the jurisdiction which was granted.

Vorwerk asserted she created a fact issue regarding the ownership of the vehicle. Vorwerk did not submit any evidence that she owned the mobile home at the time of the municipal-court proceeding. Therefore, because the relevant evidence presented by the City and the Mayor was undisputed, that is, that Vorwerk was not the registered owner, and because Vorwerk did not present any evidence that she was the owner of the mobile home at the time of the municipal-court proceeding, the court conclude that she did not raise a fact issue concerning her ownership of the mobile home at the time of the municipal court hearing. The JP properly dismissed the case for lack of jurisdiction.

Panel consists of Justices Goodwin, Triana, and Kelly. Affirmed. Memorandum Opinion by Justice Triana can be read here. Docket page with attorney information found here.

 

Eastland Court of Appeals holds deputies entitled to qualified immunity after takedown broke suspects jaw as video did not show constitutional level violations

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Peter Klassen v. Gaines County, Texas, and Gaines County Deputy Sheriffs Ken Ketron and Clint Low, 11-19-00266-CV (Tex.App.—Eastland July 15, 2021)

This is an excessive force/§1983 case where the Eastland Court of Appeals affirmed the trial court’s granting of the County’s and deputy’s dispositive motions.

Deputies responded to a disturbance involving possible aggressive actions by Klassen. Klassen was ordered to the ground and, while one of the deputies was attempting to put Klassen into the prone position, Klassen moved his hands and the deputy used his body weight to move Klassen into position. This caused Klassen to strike his chin on the ground, knocking out several teeth and breaking his jaw. Klassen sued.  The deputies filed a motion to dismiss t under the Tort Claims ACT (“TTCA”), which the trial court granted. They then filed a motion for summary judgment for the remaining federal and state claims. The trial court granted the motion as to the state claims, leaving the federal claims pending. Klassen then filed an amended petition which was almost exactly the same as the previous petition except that he, relevantly, attached as an exhibit an expert’s opinion that the force used was excessive. In response, appellees filed another motion to dismiss and a motion for summary judgment in the alternative, which the trial court granted. Klassen appealed the granting of the motion.

The Court of Appeals specifically noted that the trial court stated in its order that it examined the entire record when it dismissed Klassen’s claims, as such an analysis indicates that the trial court dismissed the claims under its motion for summary judgment as opposed to a motion to dismiss under the pleadings. When doing so, the standard for determining whether a trial court made an appropriate holding when it considered certain summary judgment evidence is a review for an abuse of discretion. In this case, the Court found no such abuse.

The Court found dismissal of the deputies was proper under the TTCA. Second, the Court found there was no excessive force after reviewing the video.   Third, the Court found that qualified immunity shielded the deputies as Klassen was unable to establish specific actions constituted a violation of clearly established law. The Court found Klassen had suffered no “constitutional injury” via the excessive force claim, so the county could not be held liable for any failure to train its deputies.

If you would like to read the memorandum opinion click here. Panel consists of Chief Justice Bailey and Justices Trotter and Williams. Opinion by Justice Williams.

Copyright infringement does not qualify as a constitutional taking says Texas Supreme Court

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Jim Olive Photograph, D/B/A Photolive, Ince v University of Houston System, 19-0605 (Tex. June 18, 2021)

The Texas Supreme Court held that a governmental entity’s infringement on a copyright does not qualify as a taking under the federal or state constitution.

Jim Olive Photography d/b/a Photolive, Inc. (Olive) is a professional photographer who took a series of aerial photographs of the City of Houston in 2005 and displayed them on his website for purchase. Such photos were registered with the United States Copyright Office.  Olive asserts the University of Houston (“University”) downloaded a copy and removed all identifying copyright and attribution material and began displaying the photographic image on several web pages.  Olive sued the University for a taking without compensation. The University filed a plea to the jurisdiction which was denied. The University appealed. The court of appeals disagreed and dismissed Olive’s claims. Olive appealed.

A copyright is a form of intellectual property that subsists in works of authorship that are original and are fixed in a tangible medium of expression. For a term consisting of the author’s life plus seventy years, the owner of a copyright enjoys the five exclusive rights of reproduction, adaptation, distribution, and public performance and display. The Court assumed, without deciding, that a copyright is a protected property interest. However, a compensable taking does not arise whenever state action adversely affects private property interests. Governments interfere with private property rights every day. Some of those intrusions are compensable; most are not. “A taking is the acquisition, damage, or destruction of property via physical or regulatory means.” To determine whether a physical or regulatory interference with property constitutes a taking, a court ordinarily undertakes a “situation-specific factual inquiry.” Property is the bundle of rights that describe one’s relationship to a thing and not the thing itself. Infringement of a copyright, however, is different than a typical appropriation of tangible property where rights are more closely bound to the physical thing. An act of copyright infringement by the government does not take possession or control of, or occupy, the copyright. The government’s violation of the copyright owner’s rights does not destroy the right or property. The Copyright Act provides that no action by a governmental body to seize or appropriate such ownership shall be given any effect under the Act. Similarly, the government’s unauthorized use of a copy of the copyrighted work is not an “actual taking of possession and control” of the copyright. Copyright infringement not only lacks the key features of a per se taking; it also does not implicate the reasons for creating a per se rule in the first place. Although the Texas Constitution waives governmental immunity with respect to inverse condemnation claims, such a claim must still be “predicated on a viable allegation of taking.” Allegations of copyright infringement assert a violation of the owner’s copyright, but not its confiscation, and therefore factual allegations of an infringement do not alone allege a taking. The plea should have been granted.

The concurring opinion focused more on the need to be flexible with a broad range of harm to property. However, the concurring justices agreed that copyright infringement was too far outside the protection.

If you would like to read this opinion click here. JUSTICE DEVINE delivered the opinion of the Court. JUSTICE BUSBY filed a concurring opinion (found here) in which JUSTICE LEHRMANN joined and in which JUSTICE BLACKLOCK joined as to part II.

Fort Worth Court of Appeals holds oral pronouncements from bench cannot be considered when appealing a written order granting Town’s plea to the jurisdiction

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John Artuso v. Town of Trophy Club, Texas, 02-20-00377-CV, (Tex. App – Fort Worth, May 13, 2021)

This is a negligence, taking,  and declaratory judgment action where the Fort Worth Court of Appeals affirmed the granting of the Town’s plea to the jurisdiction.

Plaintiff Artuso sued the Town of Trophy Club for negligence and gross negligence with regard to his home’s placement in the Town’s Public Improvement District No. 1 (PID) and the special assessments imposed in the district. Artuso asserted he timely paid all assessments and even overpaid. He requested the Town credit his account for previously over-assessed amounts, which he characterized as a taking. He claimed that the manner in which the Town apportioned the PID costs was arbitrary and capricious, amounting to a violation of his due process rights, and he complained that the Town had not responded to his assessment-reduction petition. The Town filed two pleas to the jurisdiction, which were granted. Artuso appealed.

Artuso’s argument that the trial court’s oral statements about the grounds for granting the plea were improper. The trial court’s signed order listed no grounds.  The appellate court asserted it could not look to the oral statements in the record, only to the wording of the actual written order. By applying this policy, the courts and parties are relieved of the obligation to “parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.” Because Artuso has failed to challenge all of the grounds upon which the Town’s motion could have been granted, and failed to brief all grounds, the court of appeals affirmed the granting of the dispositive motions.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, and Justices Kerr and Womack. Memorandum Opinion by Chief Justice Sudderth. Docket page with attorney information found here.

Texas Supreme Court holds ratepayer has standing to sue to challenge electric rate increase

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Data Foundry, Inc. v City of Austin, 19-0475 (Tex. April 9, 2021)

This is a utility rate challenge case. However, the issue considered by the Texas Supreme Court is whether the company purchasing electricity has standing to sue. The Court held it does have standing.

Data Foundry is an internet service provider that operates data centers in Austin. The City owns and operates Austin Energy, an electric utility system. In 2016, Austin Energy proposed to change the retail rates it was charging for electric services. The City hired a hearing examiner to conduct a review of the proposed new rates. Several ratepayers, including Data Foundry, intervened and participated in the hearing process. Ratepayers were permitted to conduct discovery, provide testimony, and cross-examine witnesses at a public hearing. Data Foundry submitted briefs in which it argued, as it does in this case, that Austin Energy’s proposed rate structure would result in rates that were unreasonable, unlawful, and confiscatory.  The Austin City Council passed an ordinance establishing new base rates and pass-through rates. Data Foundry sued in district court to hold the ordinance invalid. The City filed a motion to dismiss all of Data Foundry’s claims under Rule 91a. The trial court granted the motion, but the Court of Appeals reversed in part and affirmed in part.

The threshold inquiry into standing “in no way depends on the merits of the [plaintiff’s] contention that particular conduct is illegal.” To maintain standing, a plaintiff must show: (1) an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the defendant’s challenged action; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.  In the context of lawsuits filed by ratepayers to challenge utility rates charged by a municipality, the Court has not required an individual plaintiff to allege its injury is distinct from injuries other ratepayers may suffer. An injury is “particularized” for standing purposes if it “affect[s] the plaintiff in a personal and individual way.” Data Foundry thus alleges an injury that is particularized to it—Data Foundry suffers financial harm because it must pay Austin Energy a particular sum of money that exceeds what Data Foundry contends it should have to pay and that the rate is discriminatory. The fact that the City’s actions may also injure other residents does not preclude a finding that Data Foundry has alleged a sufficiently particularized injury. Being forced to part with one’s money to pay an excessive electric rate is an injury that is personal and individual, even though others may suffer the same injury. The Court held several cases holding that a utility ratepayer cannot establish standing to sue unless it alleges an injury different from that of other ratepayers, beyond its personal obligation to pay a rate that it claims is improper, are disapproved of as inconsistent with Texas standing jurisprudence. The Court remanded to determine the remaining issues under PURA as such determinations are not based on standing, which was the only ground upon which the trial court ruled.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court.

U.S. Fifth Circuit holds court can dismiss claims sua sponte when party has had ample opportunity to amend deficient pleadings

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Anokwuru v. City of Houston, et al., No. 20-20295 (5th Cir. March 16, 2021)

This is a racial discrimination/§1983 case where the U.S. Fifth Circuit Court of Appeals affirmed the district court’s Rule 12(b)(6) dismissal.

The Houston Police Department was investigating an alleged “gang rape.” The victim identified three suspects, one named “Idris” and the other two with nicknames “Jay” and “CheChe.” The suspect “Jay” provided a statement, naming Anokwuru by his first name of “Chidera” as being involved in the incident. Based on the statements of the victim and “Jay,” the Houston Police Officer M. Francis decided to proceed with charging Anokwuru with the incident. Following indictment, the victim definitively responded that Anokwuru was not one of the three assailants and the case was dismissed by the Harris County District Attorney’s Office. Via an original complaint, a series of amended complaints, and multiple motions for leave to amend, Anokwuru filed a §1983 claim against the City of Houston and Officer Francis, claiming false/wrongful arrest, malicious prosecution, racial discrimination, and that the City had a policy of “failing to train, supervise, and discipline its employees.” The City filed an original (and amended) Rule 12(b)(6) motion to dismiss. The trial court dismissed Anokwuru’s claim but did so without granting the City’s motion. Anokwuru appealed.

The Fifth Circuit first addressed Anokwuru’s substantive claims. The false arrest, equal protection, malicious prosecution, and “failure to train” claims were all dismissed due to Anokwuru’s failure to properly allege the required elements for each respective alleged violation. Addressing the procedural arguments, the Fifth Circuit’s decision to deny Anokwuru’s fourth request to amend his complaint was not an abuse of discretion when his proposed amendment presented no new allegations or claims. Finally, the Fifth Circuit affirmed the district court’s sua sponte decision to dismiss Anokwuru’s claims because Anokwuru had multiple opportunities to put forth his best case, he filed multiple responses to the City’s arguments, and was even given notice of the magistrate judge’s recommendation to dismiss his claims – to which Anokwuru responded – before the district court dismissed his claims.  Such is within the trial court’s discretion.

If you would like to read this opinion, click here. Panel consists of Circuit Judges Stewart, Higginson, and Wilson. Opinion by Circuit Judge Wilson.

U.S. Supreme Court holds officers “seized” suspect by shooting her even if the suspect was still able to flee and escape.

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Torres v Madrid, et al., No. 19–292. (U.S. March 25, 2021)

This is an excessive force/§1983 case where the U.S. Supreme Court held the proper inquiry into a “seizure” by excessive force (i.e. gunshots) is whether the challenged conduct objectively manifests an intent to restrain as opposed to force applied by accident or for some other purpose.

Four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white-collar crimes. They approached Torres in her vehicle, but she did not notice them until one attempted to open the door. Torres testified she only saw individuals had guns and believed they were carjackers. She drove off at an accelerated rate, but the officers shot at her thirteen times. She was temporarily paralyzed. She plead no contest to aggravated fleeing and other related charges. She later sued two of the officers for excessive force under §1983. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed.  They relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Torres appealed.

The Court performed a detailed analysis of the term “seizure.”  The Court held a seizure requires the use of force with intent to restrain. Accidental force will not qualify.  It stated “… the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context.” The seizure does not depend on the subjective perceptions of the seized person.  The Court held the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.  The Court emphasized this rule is narrow. There is a distinction between seizures by control and seizures by force. A seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Seizure by force is the application of force with intent to restrain (viewed from an objective standard). However, not all seizures are unreasonable, so the Court remanded the case back for a reasonableness determination.

If you would like to read this opinion click here. Chief Justice ROBERTS delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

U.S. Fifth Circuit holds former police officer failed to establish same-sex sexual harassment by supervisor even under recent Bostock decision

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Brandy Newbury v City of Windcrest, Texas, 20-50067 (5th Cir. March 22, 2021)

This is an employment discrimination case where the U.S. Fifth Circuit Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brandy Newbury was a police officer within her first year of employment with the City. Newbury asserted during the first year she was sexually harassed by a female supervisor, Officer Jaime because Jaime was rude to her and confrontational. The City hired an outside investigator who determined Jaime was rude, but the actions did not constitute sexual harassment. Later on, during the first year, Newbury asserted she heard a rumor another officer was following her trying to catch her violating City policy. She reported her belief that was occurring, but nothing was done.  Finally, Newbury asserts the City was secretly recording her in her home by remotely activating her body-worn camera. While the manufacturer testified the cameras could not be remotely activated that way, Newbury continued to assert a §1983 claim for invasion of privacy. However, Newbury admitted she never saw a recording of herself taken and based her belief on the fact a red light on her camera would come on by itself.   Newbury asserted the treatment was so bad she felt forced to resign, but then later asserted she was terminated. The City filed a motion for summary judgment, which was granted. Newbury appealed.

The Fifth Circuit started by noting Title VII is not a general civility code for the American workplace.  Contrary to Newbury’s assertions, the panel distinguished this case from the recent U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S. Ct. 1731 (2020) holding that while the Bostock decision “expanded the groups of individuals protected by Title VII, it in no way altered the preexisting legal standard for sexual harassment.” The panel held Newbury did not receive an adverse personnel action as a supervisor’s “rudeness” was insufficient to constitute an adverse action. Additionally, the rude actions complained of did not rise to that “greater degree of harassment” that would cause a reasonable person to resign. Additionally, a shift-change, even one which has an officer on it the plaintiff does not like, is not an actionable claim. Newbury failed to provide sufficient evidence that comparable men and women were treated differently.  Newbury failed to establish a prima facie case of retaliation since no adverse employment action occurred.  Further, the evidence demonstrated she resigned and was not terminated. Therefore, all of her Title VII claims failed.  Finally, Newbury failed to establish the body-worn cameras actually recorded her or that, even if she had produced recordings, there was a policy, custom, or practice which would have caused the recordings.  As a result, the trial court properly granted the City’s summary judgment motion.

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