13th Court of Appeals holds statute of limitations properly raised in plea to the jurisdiction and “damage” to real property is limited to two-year SOL

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Danis Tucker and Beverly Tucker v. City of Corpus Christi, Texas, 13-18-00328-CV, (Tex. App – Corpus Christi, Feb. 27, 2020)

This is a takings claim where the Corpus Christi Court of Appeals affirmed the granting of the City’s plea to the jurisdiction involving junked vehicles v antique vehicles.

A City municipal court judge ordered that four vehicles located on the Tuckers’ residential property be seized and disposed of pursuant to the City’s junked vehicles ordinance.  The Tuckers sued claiming a taking under the Texas Constitution. The City filed a plea to the jurisdiction, based in part on a statute of limitations defense,  which was granted.  The Tuckers appealed.

The court first addressed whether the statute of limitations is now considered a jurisdictional defense (as opposed to an affirmative defense) which could be raised in a plea. Adopting reasoning from other districts, the court held Tex. Gov’t Code §311.034 states compliance with statutory prerequisites to suit are jurisdictional. A statute of limitations is a prerequisite to suit and is therefore jurisdictional when dealing with a governmental entity. It, therefore, can be raised in a plea. Under § 16.003 of the Texas Civil Practice and Remedies Code, a takings claim based on a physical seizure of “personal property” is governed by a two-year limitation, while a takings claim based on the actual physical seizure of real property is a ten-year period (referencing adverse possession). However, a takings claim based on “damage” to real property is governed by the two-year limitations period. The statute of limitations begins to run when a claim accrues, which occurred more than four years before the Tuckers brought suit. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Hinojosa, and Tijerina. Affirmed. Opinion by Justice Hinojosa. Docket page with attorney information can be found here.

14th Court of Appeals reverses jury award in excessive force case against County, but upholds portion against deputy

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Harris County, et al, v Coats, et.al, 14-17-00732-CV, (Tex. App. — Houston [14th Dist.], February 6, 2020)

This is a § 1983/wrongful death case where the 14th Court of Appeals reversed in part a jury award against the County and its deputy. [Comment: this is a 49-page opinion].

Jamail and his girlfriend were using cocaine when Jamail felt ill.  Jamail exited through a window and called 9-1-1 from a public phone. However, when the EMTs arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Saints to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time.  However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity.  A jury trial was held against the County and Deputy Vailes. The jury found for Jamail’s family. The County and Deputy Vailes appealed.

The court first determined no policy, custom, or practice of the County existed to establish § 1983 liability on the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constable’s go, the fact a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.  As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient Vailes’ actions caused Jamail’s death.  Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death.  The fact Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.

If you would like to read this opinion click here. Panel consists of Justice Christopher Justice Wise, and Justice Jewel. Opinion by Justice Jewel.

14th Court of Appeals holds flooded property owners’ claims lack jurisdiction in district court

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San Jacinto River Authority v. Reba Ogletree, et al., 14-18-00043-CV, (Tex App – Hou [14th dist.], Jan 28, 2020)

In this inverse condemnation case the Fourteenth Court of Appeals dismissed the homeowner’s claims for lack of jurisdiction.

Homeowners, whose properties allegedly flooded when water was released from Lake Conroe in the aftermath of Hurricane Harvey, sued the San Jacinto River Authority (SJRA) and the Texas Water Development Board in a Harris County district court. SJRA filed a plea to the jurisdiction and the TWB filed a Rule 91a motion. The trial court denied the plea but granted TWB’s motion. SJRA and the Homeowners appealed.

SJRA and the Texas Water Board contend on appeal that Texas Government Code section 25.1032(c) imbues the county civil courts at law with exclusive jurisdiction over all inverse condemnation claims filed in Harris County. Generally, Texas district courts and county courts at law have concurrent jurisdiction in eminent-domain cases, but section 25.1032(c) creates an exception for certain cases filed in Harris County.  Inverse condemnation claims and statutory condemnation claims are distinct categories of eminent-domain proceedings. The homeowners also raised substantive and procedural due process claims. The court concluded that the district court lacks subject matter jurisdiction over the purported substantive and procedural due process claims because, as pled, they are necessarily dependent upon the viability of the inverse-condemnation claims over which the district court lacks jurisdiction.  When the homeowners requested the ability to amend their petitions, the court noted it lacked authority to lift the legislatively mandated stay in section 51.014(b) [interlocutory appeal provision], even for a limited purpose. Further, in this situation, the homeowners’ live pleading affirmatively negates the district court’s jurisdiction; hence, the homeowners are not entitled to a remand to plead new claims.  All of the homeowner’s claims should have been dismissed.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, and Justices Jewell and Bourliot. Opinion by Justice Bourliot. Docket page with attorney information found here.

U.S. Supreme Court remands statutory campaign limit case noting court of appeals upheld it under the wrong analysis

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Thompson v. Hebdon, 140 S. Ct. 348 (2019)

In this case, the U.S. Supreme Court held the court of appeals improperly analyzed Alaska’s statute limiting political contributions as constitutional.

Alaska law limits the amount an individual can contribute to a candidate for political office, or to an election-oriented group other than a political party, to $500 per year. Petitioners challenged the limit as an unconstitutional restriction on their First Amendment rights. The trial court and court of appeals upheld the limit.

The Ninth Circuit upheld the law noting the evidence necessary to justify a legitimate state interest is low: the perceived threat must be merely more than “mere conjecture” and “not . . . illusory.”  Under this analysis, the circuit court held the limit was narrowly tailored and allowed effective campaigning. However, such an analysis ignored the Supreme Court’s opinion in Randall v. Sorrell, 548 U. S. 230 (2006).  “[C]ontribution limits that are too low can . . . harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.” It also ignored several “danger signs” listed in Randall such as lower comparable limits in other states, a failure to adjust for inflation over time (Alaska’s has been the same for 23 years), and the application to different offices. The State failed to provide “any special justification that might warrant a contribution limit so low.”   As a result, the Supreme Court vacated the Ninth Circuit’s opinion and remanded for consideration consistent with its opinion.  Justice Ginsburg wrote separately to emphasize that while remand is proper, Alaska has the second smallest legislature in the country and derives 90% of its budget from the oil and gas industry. As a result, the justifications for such a low limit must be analyzed consistent with Alaska’s comparable place in the country.

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

Supervisor entitled to qualified immunity as to one suspended employees 1st Amendment claim but not the other

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Benfield v. Magee, 18-30932, (U.S. 5th Cir. December 17, 2019)

This is a First Amendment in employment action where the U.S. 5th Circuit reversed the denial of the individual supervisor’s qualified immunity defense and dismissed the claims as to one employee, but not the other.

Warren and Benfield worked in Louisiana as paramedics for the Desoto Parish Emergency Medical Services. Louisiana paramedics must complete annual recertification training, which required the approval of the medical director. Warren asserts he suggested changes to the procedures manual which would prevent Magee, their supervisor, from electronically signing in lieu of the medical director. Warren asserts afterward Magee harassed him (including criticizing Warren’s religious beliefs, denying him a promotion, accusing him of inappropriate relationships.)  When a new co-medical director inquired into the Plaintiff’s recertification, they blamed Magee for telling them to electronically falsify the records. Magee suspended Warren and Benfield for falsification.   Warren and Benfield sued Magee directly, claiming that he suspended them for exercising their First Amendment free-speech and free-association rights.  The trial court denied Magee’s assertion of qualified immunity and he appealed.

Warren’s letter of changes to the procedure’s manual occurred 19 months prior to his suspension. And while a plaintiff can establish a causal connection with other inferences, Warren’s allegations do virtually nothing to establish a chronology or relationship. He states that this harassment occurred sometime after the June 2015 letter, yet provides no further specificity.  Warran would be unable to overcome the qualified immunity defense without stating with specificity when he was harassed.  As a result, his assertions are insufficient to establish a causal connection and such claims are dismissed. However, Magee made no substantive argument for dismissing Benfield’s free-speech claim, believing Benfield raised only a freedom of association claim. As a result, the denial was proper as to Benfield.

If you would like to read this opinion click here. Panel consists of Justices Stewart, Clement and Ho.  Opinion by Justice Clement. The attorney listed for Magee is Edwin H. Byrd.  The attorney listed for Warren and Benfield is Bryce J. Denny.

Austin Court of Appeals holds Austin’s short-term rental regulations unconstitutional (assembly clause also declared fundamental right entitled to strict scrutiny)

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Ahmad Zaatari v City of Austin, 03-17-00812-CV (Tex. App. —  Austin, Nov. 27, 2019).

This is a dispute regarding the City of Austin’s regulation on short-term rental properties. The Austin Court of Appeals reversed-in-part and affirmed-in-part the City’s plea to the jurisdiction. [Comment: This is a 43-page opinion and 18-page dissent. So, the summary is a bit longer than normal]

In 2012, Austin adopted an ordinance amending its zoning and land-development codes to regulate Austinites’ ability to rent their properties as short-term rentals.  Several other amendments occurred at different times adjusting the definitions and scope of the codes until, in 2016, Property Owners sued the City for declaratory and injunctive relief to declare the regulations unconstitutional. The Property Owners (which also included the State of Texas as a party) moved for summary judgment while the City filed a plea to the jurisdiction and a no-evidence motion for summary judgment. The trial court denied the Property Owner’s MSJ, denied the City’s plea, but granted the City’s summary judgment.  Everyone appealed.

The City’s plea to the jurisdiction challenges the State’s standing to intervene in this dispute, the Property Owners’ standing to bring claims on behalf of tenants, and the ripeness of the underlying claims. The court held  the State’s standing to intervene in this matter is  unambiguously conferred by the Uniform Declaratory Judgment Act which states when the validity of a statute or ordinance is brought, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. Tex. Civ. Prac. & Rem. Code § 37.006(b).  The court next held the underlying matters were ripe because some provisions of the 2016 ordinance took effect immediately, while others were not effective until 2022. Facial challenges to ordinances are “ripe upon enactment because at that moment the ‘permissible uses of the property [were] known to a reasonable degree of certainty.’” The court held  the City’s alleged constitutional overreach itself is an injury from which the Property Owners and the State seek relief.  Further, governmental immunity does not shield the City from viable claims for relief from unconstitutional acts. As a result, the plea was properly denied.

The court next determined the trial court erred in several evidentiary rulings, which mainly deal with the public dispute over short-term rentals. The State and the Property Owners filed traditional motions for summary judgment on their claims regarding the constitutionality of the ordinance. The Texas Constitution prohibits retroactive laws. The State contends that the ordinance provision terminating all type-2 operating licenses is retroactive because it “tak[es] away th[e] fundamental and settled property right” to lease one’s real estate under the most desirable terms. While disagreeing on the effect, the City conceded the ordinance retroactively cancels existing leases. Not all retroactive laws are unconstitutional. The Court held the regulation operates to eliminate well-established and settled property rights that existed before the ordinance’s adoption.  Upon reviewing the record the court held the City made no findings to justify the ordinance’s ban on type-2 rentals and its stated public interest was slight. Nothing in the record demonstrates this ban would address or prevent any listed concerns, including preventing strangers in the neighborhood, noise complaints, and illegal parking. In fact, many of the concerns cited by the City are the types of problems that can be and already are prohibited by state law or by City ordinances banning such practices. Further, for four years the City did not issue a single citation to a licensed short-term rental owner or guest for violating the City’s noise, trash, or parking ordinances. The purported public interest served by the ordinance’s ban on type-2 short-term rentals cannot be considered compelling. Private property ownership is a fundamental right. The ability to lease property is a fundamental privilege of property ownership. Granted, the right to lease property for a profit can be subject to restriction or regulation under certain circumstances, but the right to lease is nevertheless plainly an established one.  Based on the practices performed in Austin over the years, short-term rentals have a settled interest and place in the City. The City’s ordinance eliminates the right to rent property short term if the property owner does not occupy the property. As a result, the regulations are unconstitutionally retroactive.

The court then addressed the Property Owner’s claim the regulations violated their right to assembly under the Texas Constitution. After a lengthy analysis, the court held the Texas Constitution’s assembly clause is not limited to protecting only petition-related assemblies and the judicially created “right of association” does not subsume the Texas Constitution’s assembly clause in its entirety.  The right is a “fundamental right” for constitutional analysis purposes and must be examined under a strict scrutiny analysis. The regulation sections challenged limited the number of persons at a rental at any one time, the hours of the day a rental could be used,  number of permitted leaseholders, and various other congregation related activities. The City already has various nuisance ordinances in place to address the negative effects of short-term rentals on neighbors. As a result, the City failed to establish a compelling interest that justifies a different ordinance which is not narrowly tailored. The City has not provided any evidence of a serious burden on neighboring properties sufficient to justify the additional regulations, which therefore violate the assembly clause of the Texas Constitution.

The court reversed that part of the district court’s judgment granting the City’s no-evidence motion for summary judgment and denying the Property Owners’ and the State’s motions for summary judgment. It rendered judgment declaring specific sections of the City Code void.

Justice Kelly  dissented asserting 1) the sections were not unconstitutionally retroactive (with analysis), 2) the Assembly Clause assures Texans the fundamental right to peaceably gather for purposes of meaningful civic discourse without fear of retribution – not to have short-term rentals (which are assembly-neutral zoning regulations that have a rational basis), 3) loud noise, obstructing infrastructure, flouting law enforcement, public disturbances, threats to public safety- all these may make an assembly non-peaceable and can be regulated, and 4) the majority opinion is also out of step with Texas “fundamental right” precedent (i.e. declaring rights fundamental, and thus beyond ordinary democratic give-and-take, is a weighty matter, unjustified in this case).

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Goodwin and Kelly.  Opinion by Chief Justice Rose.  Dissenting Opinion by Justice Kelly found here. Docket page with attorney information found here.

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

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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

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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

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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

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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

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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

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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

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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.

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

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

Tyson Timbs pleaded guilty to possession of a controlled substance and conspiracy to commit theft. At the time of his  arrest, 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, the value of which 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

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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 the 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 afterward, 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 Emmons’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 that “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 erred, 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.