Fort Worth Court of Appeals holds trial court lacked jurisdiction to hear civil lawsuit for wrongful arrest/malicious prosecution since Plaintiff was convicted of 1 of 3 indictments


Nathaniel Washington v. City of Arlington Police Department, R. Walsh, Taylor Ferguson, Brian Salvant, and George Mackey 02-17-00337-CV (Tex. App — Fort Worth, Oct. 4, 2018)

This is a civil rights and tort case where the Fort Worth Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

Washington was arrested on three outstanding warrants for the offenses related to drugs. A jury convicted Washington of one of the drug offenses. The criminal judgment was affirmed by the court of appeals. However, prior to the criminal affirmation, Washington filed suit against the police department and the prosecutors. The police department filed a summary judgment motion asserting the criminal conviction precluded Washington from bringing a civil suit. The trial court construed the motion as a plea to the jurisdiction and granted the plea. Washington appealed.

The crux of Washington’s claims against each named defendant is that law enforcement and legal counsel worked in tandem to have Washington falsely arrested and convicted of delivery of cocaine. An inmate plaintiff’s civil-rights or tort claims based on facts that, if true, would undermine the validity of his conviction are not legally cognizable unless the plaintiff can show that the conviction was reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus. Citing Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Washington argued the State dismissed two of the three charges and that he is not seeking release from jail, only money. Washington was arrested based on three warrants, one of which led to his conviction. Even assuming the two indictments were dismissed, the dismissals would not qualify as the relief required under Heck because Washington was validly held on the remaining warrant until his conviction.  In other words, the facts Washington sought to litigate regarding his civil suit are facts essential to his conviction.  No amount of repleading could cure these defects so Washington was not entitled to replead. The court of appeals held the trial court lacked subject matter jurisdiction to hear the claims. The dismissal was affirmed.

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

U.S. 5th Circuit holds 1) IA and CID not required to share evidence and 2) disclosure of exculpatory evidence is a “trial” right, not a right before accepting a plea offer


Alvarez v City of Brownsville, 16-40772 (5th Cir. Sept. 18, 2018)

This is a §1983/jail altercation case where the U.S. Court of Appeals for the 5th Circuit reversed a $2.3 million-dollar jury award and rendered judgment for the City. [Warning, opinion plus concurrences and dissents is a 61-page document.]

Alvarez (who was 19 at the time) was arrested for public intoxication and burglary of a vehicle. He was placed in a holding cell at the Brownsville PD.  He became disruptive and violent and officers attempted to transfer him to a padded cell to calm down. During the transfer an altercation occurred which was captured on video. An internal investigation occurred, and the video was reviewed. The IA investigation determined proper force was used to subdue Alvarez.   A simultaneous criminal track investigation also occurred for assault on a police officer.  Alvarez did not request the video and the video was not produced to Alvarez voluntarily. The PD has an internal policy where internal affairs information is not shared with the Criminal Investigation Division (“CID”).  The grand jury indicted Alvarez for assault on a public servant and he plead guilty to the charge. Upon discovering a video existed, he sued asserting the City violated his rights under Brady v. Maryland, 373 U.S. 83 (1963)(i.e. compelled release of exculpatory information). The City filed a summary judgment motion, which was denied. A jury awarded Alvarez $2.3 million dollars in damages and the City appealed.

To establish §1983 liability there must be: (1) a policymaker; (2) an official policy; and (3) a violation of a constitutional right whose “moving force” is the policy or custom. Alvarez “must show direct causation, i.e., that there was ‘a direct causal link’ between the policy and the violation.”   For purposes of the analysis, the court assumed, without deciding, the police chief was a final policymaker and that a policy existed preventing the sharing of information between IA and CID.  However, even with those assumptions, the court held no direct causal link existed between the policy and the constitutional violation. It is undisputed the CID investigator failed to inquire about video recordings and did not possess it when performing the criminal investigation. While that may have been a sloppy investigation, that does not create a causal connection. “This series of interconnected errors within the Brownsville Police Department that involved individual officers was separate from the general policy of non-disclosure of information from the internal administrative investigations. The general policy of non-disclosure was not a direct cause of Alvarez’s injury.”  Further, the general policy of non-disclosure was not implemented with “deliberate indifference.” Additionally, “[p]lacing the final decision-making authority in the hands of one individual, even if it makes an error more likely, does not by itself establish deliberate indifference.”  The court also analyzed the impact of Alvarez’s guilty plea on his Brady claim. Citing various U.S. Supreme Court cases, the 5th Circuit held exculpatory and impeachment evidence are not required to be released at every stage of a criminal case and not necessary before the defendant takes a plea agreement. “[W]hen a defendant chooses to admit his guilt, Brady concerns subside.” Essentially, a Brady right is a trial right, not a pre-trial right.  The court did list the other federal circuits which agree with this approach and those which disagree with this approach. However, the court adopted the “trial right” approach and dismissed Alvarez’s claims as a matter of law.

If you would like to read this opinion click here. Court sitting en banc. Chief Judge Carl Stewart issued the opinion. Judge Duncan, Judge Engelhardt and Judge Oldham joined the court after this case was submitted and did not participate in the decision.

City obtained mandamus to remove TRO preventing display of budget meeting which addressed fiscal impact of pending charter election


In re Sylvester Turner, Mayor and Dave Martin, Houston City Council Member 14-18-00649-CV (Tex. App. – Houston [14th Dist.], Aug. 23, 2018)

This is an original mandamus where the 14th District Court of Appeals in Houston reversed a trial judge’s order requiring the City to remove the video and transcript of the City’s budget meeting from its website.

A Houston firefighter association (“Association”) collected petitions to place a charter amendment on the ballot which addresses comparable compensation between the firefighters and police. The City Council scheduled a council vote for August 8, 2018, to place the Charter Amendment on the ballot. Pursuant to the Texas Local Government Code, for a charter amendment to appear on the November 2018 general election ballot, the City must publish a fiscal impact in the paper several times. The first publication must occur, at the latest, by mid-October 2018. Relators’ petition states that the City’s Budget and Fiscal Affairs Committee scheduled a public meeting for July 26, 2018, in anticipation of the publication. Various City officials spoke at the meeting and the Association’s attorney was invited to speak. Afterwards a video was posted. Four days later, the Association sought a temporary injunction to prevent release of the video asserting it violated the Election Code. A judge signed a TRO restraining the City from displaying on municipal websites or other municipally funded media platforms any audio, video, or transcribed versions of the July 26 meeting.

The Association alleges the City violated §255.003 of the Election Code, which prohibits an officer or employee of a political subdivision from knowingly spending public funds for political advertising. “Political Advertising” includes a communication supporting or opposing a measure that appears on an Internet website. The City’s Budget and Fiscal Affairs Committee scheduled the July 26 public meeting to obtain information regarding the fiscal impact of the proposed charter amendment. The fiscal impact of the charter amendment is relevant to whether voters and Council Members may oppose or support the charter amendment. The 14th Court held it was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting. However, according to Ethics Advisory Opinion No. 456, such public discussion generally does not violate §255.003 of the Election Code. Such section was not intended to inhibit discussion of matters pending before a governmental body. In such a situation, public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the City’s website may be to re-publish statements supporting or opposing the charter amendment.  As a result, the district court judge committed error, and mandamus was issued.

If you would like to read this opinion, click here. Panel consists of Justice Boyce, Justice Wise and Justice Jewell. Memorandum Opinion by Justice Wise. The docket page with attorney information is found here.

Texas judge’s successfully reverse injunction in federal court regarding system for setting bail for indigent misdemeanors


ODonnell v. Harris County, et al.,  No. 18-20466 (5th  Cir. Aug. 14, 2018).

Plaintiffs brought a class action against Harris County and numerous officials, including judges and hearing officers under §1983 asserting the system for setting bail for indigent misdemeanor arrests violates their due process and equal protection rights. They obtained a preliminary injunction preventing the use of the system, which the U.S. 5th Circuit reversed in part and remanded.   On remand, the injunction was adjusted. Now the County cannot hold indigent arrestees for the 48 hours preceding their bail hearing if the same individual would have been released had he been able to post bond. The County must release, on unsecured personal bond, all misdemeanor arrestees who have not had a hearing and individual assessment within 48 hours. Fourteen Judges filed an emergency motion with U.S. 5th Circuit, requesting a stay of only four sections of the injunction dealing with these provisions.

The court analyzed the mandate rule. “[T]he mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Remand is not the time to bring new issues that could have been raised initially. Despite the district court’s diligent and well-intentioned efforts Section 7 of the injunction easily violates the mandate, which explicitly found that individualized hearings would remedy the identified procedural violations. The requirement that such a hearing be held within 48 hours is applied to those who cannot afford the pre-scheduled bond. Individualized hearings fix that problem, so immediate release is more relief than required and thus violates the mandate rule. Further, the Due Process and Equal Protection Clauses do not require the release dictated by Section 7. Sections 8, 9, and 16 are likewise not constitutionally required. The Judges have made an adequate showing to satisfy the remaining elements. They and the public are harmed by enjoining the County’s bail system. And given their likelihood of success on the merits, any harm to Plaintiffs, standing alone, does not outweigh the other factors.

If you would like to read this opinion, click here. Panel consists of Justice Smith, Justice Graves and Justice Duncan. Dissenting opinion by Justice Graves.

City found liable in $4.7 million dollar breach of an economic development agreement


City of Lancaster v. White Rock Commercial, LLC, 05-17-00583-CV (Tex. App. – Dallas, Aug. 20, 2018).

The Dallas Court of Appeals reversed-in-part and affirmed-in-part a $4.7 million-dollar verdict against the City of Lancaster arising out of an alleged breach of an economic development agreement. [Comment: warning, this is a 30-page opinion].

White Rock is a real estate developer. In 2007, the City was willing to provide economic incentives to promote a certain development. White Rock entered into two contracts: (i) an “Incentive Agreement” with the Lancaster EDC and (ii) a Chapter 380 Economic Agreement with the City. White Rock agreed to design and construct infrastructural improvements for a 1.4 million square-foot industrial park. Each contract had a different method of payments and the parties disagree as to whether the 380 Agreement was to supplement the Incentive Agreement or provide additional funding beyond the Incentive Agreement.  In the City’s view, the 380 Agreement’s purpose was to reimburse White Rock’s expected costs that were in excess of the $1.8 million to be paid under the Incentive Agreement as the EDC had a limited budget. White Rock counters that the Incentive Agreement provided additional incentives above 380 Agreement. White Rock sued the City in June 2014, alleging that it breached the 380 Agreement.  It filed a motion for partial summary judgment which established liability, disposed of the City’s defenses, an ordered the only remaining issue was damage amounts. The City subsequently filed a plea to the jurisdiction, claiming that it was immune from White Rock’s breach of contract suit and that the 380 Agreement created a debt prohibited by the Texas Constitution.  The trial court denied the plea. A bench trial was held on damages and the trial court awarded $4,726,217.53.  The City appealed.

The court started out analyzing whether the 380 Agreement, which was focused on infrastructure, was entered into as a governmental function or a proprietary function of the City. Because “the functions expressly covered by the 380 Agreement are expressly identified in section 101.0215 [of TTCA] as governmental functions, we do not apply the Wasson II [4-part] test.”  Instead, the court relied on the legislative language holding the infrastructure focus of the agreement means the contract was entered into for a governmental purpose. The contract was therefore, subject to analysis of the contractual waiver provisions of immunity under Chapter 271 of the Texas Local Government Code. Whether a contract has all the essential terms to be an enforceable agreement is a question of law. Material terms are determined on a case-by-case basis. The City asserted White Rock was already legally required to construct and dedicate the infrastructure, so the City’s assistance in financing the legal obligation was not a benefit, good, or service to the City. The court held that while the contract expressly stated it was expected to benefit the City and is expected to net $12.4 million in benefits, “this benefit to the City is too attenuated for a waiver.” However, the circumstances of this case demonstrate that White Rock’s Agreement to construct the infrastructural improvements was itself a direct benefit to the City. The City’s agreement to pay White Rock for such construction is further evidence of a contract for services.  Immunity is therefore waived under §271.152.  Further, the 380 Agreement was not an unconstitutional debt. Next the court analyzed the language and stated the sections of the 380 Agreement cited by the City were conditions subsequent, which are affirmative defenses, not conditions precedent, which are jurisdictional. The court then analyzed the various points of error and concluded the evidence supported the judgment against the City. However, the evidence does not support a claim by White Rock for insurance costs and the trial court errored in the pre-judgment and post-judgment interest calculations.  Otherwise, the judgment is affirmed.

If you would like to read this opinion click here. Panel consists of Justice Bridges, Justice Brown and Justice Boatright.  Memorandum Opinion by Justice Boatright.  The attorneys listed for the City are M. Shelby Pearcy and Robert Eugene Hager.  The attorneys listed for White Rock are Victor D. Vital, Benjamin Pendroff and William R. Stewart.



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

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

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

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

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

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

Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals


Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

Employee failed to establish valid comparators in equal protection/employment discrimination case, so individuals entitled to qualified immunity says 5th Circuit

Mitchell v. Mills No. 17-40737 (5th Cir. July 13, 2018)

This is an equal protection in employment case where the 5th Circuit held the individual defendant mayors were entitled to qualified immunity.

Mills and Chartier were both mayors at different times during Mitchell’s employment by the City. Mitchell is an African-American man in the Public Works Department (“PWD”). Mitchell alleged the defendants paid him less than two comparable white coworkers.  Mitchell’s comparators are Davlin, who is a Street Superintendent and Heard, who was Davlin’s predecessor. Both comparators shared some overlapping duties with Mitchell, but they also had additional duties and skills including experience in operating street-related heavy equipment, including a motor grader. Mills and Chartier moved for summary judgment on the basis of qualified immunity, which the trial court denied. They filed this interlocutory appeal.

Mitchell bears the burden to overcome qualified immunity. Mitchell may not rest on mere allegations or unsubstantiated assertions but must point to specific evidence in the record demonstrating a material fact issue.  In order to establish a violation of the Equal Protection Clause in the employment context, a plaintiff must prove a racially discriminatory purpose or motive.  As part of his prima facie case of wage discrimination, Mitchell “must show that he was a member of a protected class and that he was paid less than a non-member for work requiring substantially the same responsibility.”  His circumstances must be “nearly identical” to those of a better paid employee. Given the undisputed facts, Davlin and Heard are not nearly identical comparators. They worked in the street department and Mitchell in the water department. Streets required specialized skills which were not required for Mitchell’s job. It is undisputed that Mitchell possessed none of these skills and that such skills and responsibilities were not required for his position. In sum, Mitchell failed to carry his burden to overcome the defendants’ claim of qualified immunity. The summary judgment should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices JOLLY, SOUTHWICK, and WILLETT. Opinion by Justice Jolly. Attorney listed for Defendants is Darren Keith Coleman.  The attorney listed for Mitchell is Dorian Vandenberg-Rodes.

City’s denial of plat application citing inconsistencies with “general plan” of city, without more, is insufficient and therefore vested rights are implicated


The Village of Tiki Island, et al.  v. Premier Tierra Holdings Inc., 14-18-00014-CV (Tex. App. – Houston [14th Dist.], July 10, 2018)

This is an interlocutory appeal in a land-use case were the 14th Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

This case has gone up and down the appellate ladder already.  Prior summary found here. Premier sought to develop property for a mixed-use marina project. Premier submitted a plat application which included up to one hundred residential units and up to 250 dry stack enclosed boat slips. The City had no meaningful land-use regulations or platting or subdivision regulations. Five days later the city enacted a zoning ordinance prohibiting dry boat storage, limiting heights and set-backs, and restricting rental dates and parking. The City then rejected the plat application as being inconsistent with the new ordinance. Premier next sought a rezoning application as a planned unit district, which was denied.  It also sought several plat amendments which were denied. Premier filed a mandamus and sought declaratory relief asking the court to approve the original plat application and successive plat applications based on vested rights under chapter 245 of the Texas Local Government Code. It further brought a takings claim. The City Defendants filed a plea to the jurisdiction which was denied. The City Defendants appealed.

Chapter 245 creates a system by which property developers can rely on a municipality’s regulations in effect at the time the original application for a permit is filed. It freezes” the rules at the time the original application for a permit is filed, and limits the rights of a city to “change the rules in the middle of the game.” Chapter 212 of the Texas Local Government Code deals with plat approval and requires plats to conform to the “general plan” of the city and for extensions of utilities and roadways. The City’s assertion that it relied on a pre-existing “general plan” of the City in denying the original plat application was rejected as the City did not provide, in the record, evidence of such a plan or what its framework would have been. Chapter 212 plans must be adopted after public hearings, which is not evident in the record. A vague reference to a general plan of the city is insufficient for plea purposes and a fact question exists preventing the plea. Further, Chapter 245 expressly authorized a declaratory judgment suit to establish Chapter 245 rights. As to the takings claim, the court held Premier alleged facts to support a takings claim based on the denial of its vested rights in the project.

If you would like to read this legal opinion, click here. Justice Christopher, Justice Donovan and Justice Wise. Opinion by Justice Wise.

Texas Supreme Court holds county official removal statute is subject to Texas Citizens Participation Act and sovereign immunity is waived for attorney’s fees of losing party


State of Texas ex Rel. George Darrell Best v Paul Reed Harper, 16-0647, — S.W.3d – (Tex. July 29, 2018).

This is a Texas Citizens Participation Act (“TPCA”) case where the Texas Supreme Court held a suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. Sovereign immunity is also abrogated for certain types of attorney’s fees under the TCPA.  This is a 30-page opinion, so the summary is a bit long.

Paul Harper was elected to a position on the Somervell County Hospital District Board and allegedly tried to make good on his campaign promises or removing taxes and employees. In response, a county resident named George Best sought to remove Harper under the county removal statute.  Best alleged that Harper violated the district’s bylaws at a board meeting by moving to set the district’s tax rate at zero.  Best also alleged that Harper posted a blog that falsely accused the district’s administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency.  The removal statute authorizes a citizen to file suit, but it also requires the county attorney to “represent the state” in any removal proceedings that take place. The Somervell county attorney opted to appear in this case as plaintiff on the state’s behalf. The state adopted Best’s allegations, and it added an allegation that Harper engaged in misconduct by violating the Texas Open Meetings Act by texting board members. Harper filed a motion to dismiss the case under the TCPA asserting the removal statute impedes the exercise of the right to petition and right of free speech. After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss.  Harper appealed. The court of appeals reversed, holding that the TCPA applies to the state’s removal action and that the state failed to establish a prima facie case for removal.  In the interim, Harper lost the last election and no longer sits on the board. The Texas Supreme Court granted the state’s petition for review.

The Court first noted the Plaintiffs’ claims are not moot.  While Harper argues mootness cannot be addressed because the record does not contain information he lost the election, a court must consider issues affecting its jurisdiction sua sponte.  Here, the state filed a “status report” with the court of appeals that included an election canvass confirming that Harper lost his reelection bid. Harper does not dispute that he lost the election or that he no longer holds the position. The Court then analyzed and held the attorney’s fees issues and sanctions issues still remain, so the case is not moot. However, the Court cautioned that such applies only if attorney’s fees are ordered prior to the case being moot. The court of appeals ordered the trial court to award attorney’s fees (since it is mandatory under the TCPA) prior to the election, so this particular case survives. And, since the attorney’s fees are required by the TCPA to a prevailing party, the aspects of whether the TCPA applies remain live.

The State asserted a removal suit is not a “legal action” under the TCPA, because it is a specific statute seeking political relief which is controlling over the general TCPA. The term “legal action” is defined within the TCPA. Using rules of statutory construction, the Court held a “remedy” is another word for “relief” and the TCPA authorizes relief as a legal action. As a result, the TCPA applies. Further, the Court held the TCPA’s dismissal provisions complement, rather than contradict, the removal statute. The rule that a specific provision controls over a general provision applies only when the statutes at issue are ambiguous or irreconcilable. The Court found no ambiguity or irreconcilable language after analysis.

Next the Court noted that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney.”  However, the TCPA’s purpose includes a very distinct intent to encourage participation in government to the maximum extent permitted by law. Enforcement action is not defined in the TCPA. Again, using rules of statutory construction, the Court held the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. Under this definition, a removal petition is not an “enforcement action” by itself or in all cases. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. When a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable. However, when it is not unlawful conduct, it is not an enforcement action. Incompetency and drunkenness are both a basis for removal under the removal statute, but neither is against the law. “Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs.  … Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.”  “We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s demands does not render him incompetent.” Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself.  Therefore, Best’s claims are not enforcement actions and the TCPA still applies.

However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. Best did not allege official misconduct against Harper, but the state did in the form of a Texas Open Meetings Act violation. This is sufficient to form the basis of an enforcement action. The Court held Harper may benefit from the TCPA’s expedited-dismissal provisions for the grounds that Best’s initial removal petition raised, but not for the state’s additional ground.

The state then argued the attorney’s award and remand were improper against it given its immunity. The Court held the state waived its immunity from liability as it did not raise it.  The state only raised immunity from suit. The Court then went through a myriad of arguments back and forth regarding immunity from suit. Ultimately, the Court held “[b]ecause the state should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them—and because when it does sue, it risks paying only attorney’s fees (rather than damages or some other uncapped sum), abrogating the state’s sovereign immunity in the TCPA context does not present any grave danger to the public fisc. … Because the state was not operating within sovereign immunity’s bounds when it joined Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s terms.”

The dissent argued the majority ignores the governing statute’s language and undermines the Court’s well-established sovereign-immunity precedent. The dissent asserts the removal statute’s application of incompetence and drunkenness apply only to remove an officer from his official duties. A county officer’s “official duties” are substantive duties imposed by statutory law and therefore the entire case is an enforcement action exempt under the TCPA. The dissent took great issue with the Court’s abrogation of immunity from suit for attorney’s fees.

If you would like to read this opinion click here. Justice Brown delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined.
Justice Boyd delivered a dissenting opinion, in which Justice Johnson and Justice Lehrmann joined.

State trial court lacks jurisdiction over property dispute when U.S. government has a potential interest in the property

Rio Grande City Consolidated Independent School District v. City of Rio Grande, et al., 04-17-00346-CV (Tex. App. – San Antonio, June 27, 2018)

In this property dispute, the San Antonio Court of Appeals affirmed-in-part and reversed-in-part a trial court’s order granting the City’s plea to the jurisdiction.

The Rio Grande City Consolidated Independent School District (“District”) asserts it owns a 0.64 acre tract of land. It sued the City of Rio Grande (“City”) for trespass to try title and declaratory judgment. The U.S. government filed an intervention to preserve its interest in the property.  The City filed a plea/MSJ which the trial court granted. The District appealed.

Pursuant to 28 U.S.C. § 1346(f), federal district courts have exclusive original jurisdiction in trespass to try title claims where the U.S. government has an interest in property. As a result, the state trial court lacked jurisdiction to hear the title claim. The school district amended its pleading after the plea was filed to allege an unconstitutional taking. The plea/MSJ was not amended. Because the record shows the school district’s unconstitutional taking claim was not addressed in the plea to the jurisdiction/summary judgment motion, the trial court erred in disposing of this claim.

If you would like to read this opinion, click here.  Panel consists of Justice Angelini, Justice Barnard, and Justice Martinez. Memorandum Opinion by Justice Angelini.  The docket page with attorney information is found here.

Texas Supreme Court holds City plastic bag ban preempted under the Solid Waste Disposal Act



City of Laredo v Laredo Merchants Association, 16-0748, — S.W.3d. – (Tex. June 22, 2018)

The Texas Supreme Court held the City’s plastic/paper trash bag ban is preempted.

As part of a strategic plan to create a “trash-free” city, the City of Laredo adopted an ordinance to reduce litter from one-time-use plastic and paper bags. The Ordinance makes it unlawful for any “commercial establishment” to provide or sell certain plastic or paper “checkout bags” to customers. The Laredo Merchants Association (the Merchants) sued the City to declare the ordinance preempted by state law. The Solid Waste Disposal Act, specifically Tex. Health & Safety Code §361.0961, precludes a local government from prohibiting or restricting “the sale or use of a container or package” if the restraint is for “solid waste management purposes” not otherwise authorized by state law. The trial court granted the City’s summary judgment motion, but a divided court of appeals reversed and rendered judgment for the Merchants. The City appealed.

A statutory limitation of local laws may be express or implied, but the Legislature’s intent to impose the limitation “must ‘appear with unmistakable clarity.’” The Solid Waste Disposal Act’s policy is to reduce municipal waste to the extent feasible. The Act’s preemption of local control is narrow and specific, applying to ordinances that “prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law”. The court held “solid waste management” refers to institutional controls imposed at any point in the solid waste stream, from generation of solid waste to disposal. The definition includes the systematic control of the generation of solid waste. The City’s argument the bags were not solid waste under the Act’s definition because they had not yet been discarded as waste at the point of regulation was rejected. Further, the Court held A single-use paper or plastic bag used to hold retail goods and commodities for transportation clearly falls within the ordinary meaning of “container”. Under the Act’s immediate context, the words “container” and “package” are not accompanied by words modifying or restricting the terms. The Act is not concerned solely with discarded materials but also includes regulations applicable to the production, retail sale, and distribution of new consumer goods. Finally, the Court held the preemption provision applies to local regulation when the manner is not authorized by state law. Manner is how something can be done, not merely if it can be done. The Act removes a home-rule city’s general power over solid waste, but provides limited authority back in certain situations not applicable here.  The City’s Ordinance does not fall within a manner authorized by another state law. As a result, the Act preempts the City’s ordinance.

Justice Guzmon concurred but wrote separately to emphasize the balance needed in such a situation. The City’s Ordinance had a valid environmental purpose. “Improperly discarded plastics have become a scourge on the environment and an economic drain.” Her opinion highlighted the damage caused by unchecked waste ranging from animals, to ranchers, to the agricultural industry. However, the City’s Ordinance listed only a moderate form of impact and had a direct financial impact on the merchants and non-local vendors. She noted a lack of uniform state-wide regulations creates concern and negative impacts, so some preemption is understandable and necessary. In the end the balance of all competing interests is the purview of the legislative branch, not the judicial branch.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht. Concurring opinion by Justice Guzman, joined by Justice Lehrmann.  The docket page with attorney information is found here.

Zoning amendment was not retroactive and property owner had no vested interest in perpetual use of his property for a specific purpose says Dallas Court of Appeals


Hinga Mbogo, et al. v. City of Dallas, et al. 05-17-00879-CV (Tex. App. – Dallas, June 19, 2018)

This is an appeal from an order granting the City Defendants’ plea to the jurisdiction in a constitutional challenge to zoning laws. The Dallas Court of Appeals affirmed the granting of the plea.

Hinga leased land and opened a general repair shop on Ross Avenue in Dallas, Texas, in 1986. At that time, the City’s zoning ordinances allowed automobile-related businesses on Ross Avenue. After performing a study which found automobile-repair shops were a concern in the area based on the connected roads and services in the area, the City amended its zoning ordinance in 1988 prohibiting such uses. At that time, Hinga was fully aware that continuing his business became a “nonconforming use.” In 1991, Hinga purchased the property, expanded and upgraded knowing the property was nonconforming. In 2005 the City again amended the zoning ordinance and codified specific provisions related to non-conforming uses and provided deadlines. A property owner could appeal to the board of adjustment to extend deadlines to comply with the requirements. The BOA gave Hinga a new compliance date of April 13, 2013. Hinga then received a zoning change and SUP which expired in 2015. Hinga applied for a new SUP in February 2016, which was denied. The City filed suit seeking a permanent injunction to prevent operations and sought fines of $1,000 per day. Hinga counterclaimed and brought in various City officials. The City defendants filed a plea to the jurisdiction, which was granted. Hinga appealed.

Hinga argues the City’s ordinances, as applied to him, are unconstitutionally retroactive. A retroactive law is one that extends to matters that occurred in the past. Hinga asserted in 2005 and 2013 he had no notice the City would at some point make his use illegal. However, a law is not retroactive because it upsets expectations based in prior law.  Further, there are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses. In 2005 the City’s ordinance change allowed the owner of a nonconforming use to apply for a later compliance date if the owner would not be able to recover his investment in the use by the designated conformance date. The ordinance did not change any use but rather, it prospectively altered a property owner’s future use of the property. The 2013 ordinance likewise set a deadline for when it expired. As a result, the ordinances are not retroactive. Additionally, the court noted not all retroactive laws are unconstitutional. Here, any interest that Hinga had in the use of his property is not “firmly vested.” There is no bright-line rule and, generally speaking, an individual has no protected property interest in the continued use of his property for a particular purpose. The process provided likewise did not deprive Hinga of due process or single him out in any respect. The City allowed Hinga to run a business from 1991 through 2015 as either a nonconforming use or under a SUP; however, his use became illegal once his SUP expired. Hinga’s position under his takings argument appears to be that any restriction on his desired use of the property results in unconstitutional damage or destruction to his property. That is simply not the case as he had no vested right to perpetual, guaranteed use of his property in a specific way. As a result the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Bridges, Justice Myers and Justice Schenck. Memorandum Opinion by Justice Bridges. The docket page with attorney information can be found here.

City retained ability to revoke non-consent tow permit says U.S. 5th Circuit



Rountree v. Dyson No. 17-40443 (5thCir. June 11, 2018)

This is a 42 U.S.C. 1983 suit where the City of Beaumont removed a tow-truck company from its non-consent tow rotation list and the 5thCircuit affirmed a dismissal in favor of the City.

Rountree owned a towing company and had been on the non-consent tow rotation list for thirty years. Police Chief James Singletary revoked Rountree’s city-issued towing permit based on a complaint by a competing tow company, which asserted—truthfully—that three of Rountree’s state-issued licenses had lapsed. Rountree did not dispute the lapse, but instead asserted the Chief persuaded the competitor to file the complaint and had targeted Rountree.  The permit is not required for all tows, just non-consent tows requested by PD. Later, Rountree was called by a former customer to help with a tow but Rountree called a permitted tow truck to help the former customer. Sergeant Troy Dyson arrived on the scene and told Rountree to leave. Rountree refused and Dyson arrested him. The charge was later dismissed. Rountree sued the City and Dyson. The trial court dismissed his claims and Rountree appealed.

First, the 5thCircuit held that the trial court was within its discretion to dismiss the case before considering Rountree’s amended pleading. “Defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending.” Rather, “[i]f some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading.” Second, class-of-one claims are inapposite “to a local government’s discretionary decision to include or not include a company on a non-consent tow list.” If a city has the discretion to choose from whom it contracts private services, then it must equally retain the discretion to choose when to terminate such relationship. Alternatively, Rountree’s equal-protection claim fails because he did not sufficiently allege that he has been treated differently from others similarly situated.Finally, Rountree was unable to overcome Dyson’s entitlement to qualified immunity. The City had a criminal ordinance requiring all tow truck operations to follow the commands of police at scenes. Since it is undisputed Rountree refused, the arrest was based on such action by Rountree and was within Sgt. Dyson’s discretion. The dismissals were affirmed.

If you would like to read this opinion click here. Panel consists of Justices Smith, Wiener and Willett. Opinion by Justice Smith. The attorney listed for Rountree is Randall Lee Kallinen.  The attorney listed for the City is Frank David Calvert.

City immune from claims it misapplied its own ordinances or procedures, but not for TOMA claims



Peter Schmitz, et al v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, May 10, 2018).

This is a substituted opinion. Summary of original opinion found here. This is an appeal from a final judgment against the Plaintiffs who attempted to force the Town to enforce its zoning laws against other property owners.

In 2014 the Denton County Cowboy Church (“Church”) purchased property zoned single family residential under the Town of Ponder’s zoning ordinance.  The Church’s property is adjacent to the Plaintiffs’ property. According to Ponder’s comprehensive plan, the Plaintiffs’ properties are designated for future low-density residential zoning. In 2015 the Church began construction of an arena. The Town issued a building permit for an open arena. Plaintiffs sued the Church and Town of Ponder, seeking injunctions prohibiting the Church from continuing construction. They also brought claims under §1983 for due process, takings, and equal protection violations. The Town and Church both filed pleas to the jurisdiction which the trial court granted. The Plaintiff appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity when no ordinance is being challenged. The City maintains immunity for claims seeking a declaration of the claimant’s statutory rights or over a claim that government actors have acted outside the law—ultra vires. However, the majority of the Plaintiff’s requested declarations would establish that the Town, not the individual committee or council members, violated or misapplied its own ordinances or procedures, rendering its actions arbitrary and unreasonable. The Town maintains immunity from such claims. The ordinances further did not waive the Town’s immunity by authorizing suit for enforcement.  With no UDJA claim, requests for permanent injunction are also not viable. Liability against a governmental unit for private-nuisance injuries arises only when governmental immunity is clearly and unambiguously waived, which is not the case here. However, immunity is waived under the Texas Open Meetings Act (“TOMA”) so the TOMA claims are remanded. The court stressed that the waiver of immunity under TOMA does not apply to the extent Plaintiffs seek more than injunctive relief or a declaration that the Town’s actions were voidable under TOMA only. Under Plaintiffs’ §1983 claims, a regulatory taking can occur when governmental action unreasonably interferes with a landowner’s use and enjoyment of his property. However, the Plaintiffs claims challenge the process in which the Town enforced its ordinances, not the substance of the enforcement. Plaintiffs have no protected property interest in the manner in which the Town enforced or failed to enforce its ordinances against the Church, rendering their claim under § 1983 not viable. And while the Town argued RLUIPA preempted their enforcement of certain matters of the ordinances, RLUIPA does not implicate jurisdiction so is not proper to raise in a plea. The court then analyzed the claims against the Church and ultimately held some claims survived and were remanded.

If you would like to read this opinion click here. Panel consists of Justice Gabriel and Justice Pittman. Memorandum Opinion by Justice Gabriel. The attorneys listed for the Plaintiffs are Gregory Sawko and Robert E. Hager.  The attorneys listed for the Town are Matthew Butler and John F. Boyle Jr.