December 2018 Condensed Summaries

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

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

1st District Court of Appeals holds section of Texas Water Code regarding sewer CCNs unconstitutional

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City of Tyler v. Liberty Utilities (Tall Timbers Sewer) Corp., 01-17-00745-CV (Tex. App. – Houston [1st Dist.], December 20, 2018)

This is a declaratory judgment case where the First District Court of Appeals in Houston held a provision of the Texas Water Code unconstitutional.

Liberty Utilities (Tall Timbers Sewer) Corporation provides retail sewer utility service in Smith County under a certificate of convenience and public necessity. The City of Tyler desired to provide sewer service in Liberty’s service areas. State law prohibited the dual service in the area, so the City went to the Legislature, which passed §13.2475 of the Texas Water Code.  This created an exception from the generally applicable law allowing the City to provide sewer service within its boundaries, even in Liberty’s service areas. Liberty then sued the City, successfully obtaining a declaratory judgment that §13.2475 is unconstitutional. The City appealed.

In this 21-page opinion, the court analyzed the constitutional prohibition against local laws under  Article III, Section 56 of the Texas Constitution. The court analyzed the legislative debate and the author’s stated intended purpose. The court determined the section was bracketed and intended to address Tyler and regulated its affairs as a local law. The court further determined none of the constitutional exceptions from the prohibition applied. “The City of Tyler’s legislative strategy to uniquely exempt itself from the operation of Water Code Section 13.247(a) was a violation of the Texas Constitution’s default preference for laws of general applicability and general prohibition of local laws.”  As a result, it held §13.2475 unconstitutional.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Bland, Justice Massengale. Opinion by Justice Massengale.

Mandamus action: Pre-suit discovery precluded as petitioner did not support the petition with evidence and trial court failed to issue mandatory findings

In Re: City of Tatum, Texas, 12-18-00285-CV (Tex. App. – Tyler, December 21, 2018)

This is a writ of mandamus original proceeding where the Tyler Court of Appeals conditionally granted the City’s relief and precluded a potential party from taking pre-suit depositions pursuant to Rule 202.

Peterson filed a petition for a pre-suit deposition of the police chief pursuant to Texas Rule of Civil Procedure 202. The grounds for the deposition are that Peterson asserts a Tatum police officer sexually assaulted her when the officer arrived in response to a call for assistance at the home. She alleged that the City knew the officer “exhibited indicators” of this type of behavior; negligently hired, trained, controlled, supervised, and monitored the officer; did not have a policy to prevent such behavior and she anticipated being a party to a lawsuit involving the City. The City objected.  The trial court signed an order allowing the deposition and the City filed this original mandamus proceeding.

Pre-suit discovery is not intended for routine use; it creates practical and due process problems because discovery demands are made of individuals or entities before they are told of the issues. Rule 202.4 states a trial court must order a pre-suit deposition to be taken only if it finds: (1) allowing the deposition may prevent a failure or delay of justice in an anticipated suit (to be used if the purpose is to collect evidence for a lawsuit )or (2) the likely benefit to investigate a potential claim outweighs the burden or expense of the procedure (to be used in order to investigate if a claim even exists). The verified statements in a Rule 202 petition are not considered competent evidence. Peterson presented no evidence to support possible claims to investigate or collect. That a party (i.e. City) may be in possession of evidence pertinent to the subject matter of the anticipated action or to the petitioner’s potential claims does not alleviate the petitioner of her burden of providing evidence to support a Rule 202 request for pre-suit depositions. Further, the order does not contain the findings required to make it a proper order. The Texas Supreme Court has made clear that Rule 202.4 findings cannot be implied from the record and the findings are mandatory. Because the requirements of Rule 202.4 are mandatory, the City’s failure to object in the trial court does not result in waiver. The court conditionally granted the writ and stated an unconditional writ will issue only if the trial court’s order is not corrected.

If you would like to read this opinion click here. Memorandum opinion by Justice Neeley. The attorney for the City is listed as Darren K. Coleman.  The attorney for Peterson is listed as Ron Adkison.

Texas Supreme Court disposes of various natural gas compressor taxation suits by holding taxing location is inventory yard, not temporary physical locations

Ward County Appraisal District v EES Leasing, et al, 15-0965 (Tex. Nov. 16, 2018)

The Texas Supreme Court issued several connected opinions relating to the proper taxing entity for compressor equipment and pipelines.

EXLP Leasing owns and leases out compressor stations used to deliver natural gas into pipelines, with some of the pipelines located in Ward County and some in Midland County. EXLP began paying taxes on the compressors located in Ward County to Midland County, where EXLP contends it “maintain[s] a yard from which its inventory … is leased, to which leased compressors are returned after [the] leases expire[s], and where the inventory in the area is serviced.” But Ward County continued to tax full market value. EXLP Leasing filed suit arguing Tax Code provisions amended in 2012 are unconstitutional on their face and as applied because the statutory formula for valuing leased heavy equipment bears no relationship to any measure of market value as required by the Texas Constitution.  The Court, on October 10, 2018, issued an opinion in EXLP Leasing, LLC v. Galveston Central Appraisal District, 554 S.W.3d 572 (Tex. 2018), which disposed of the issues by holding taxable situs for dealer-held heavy equipment was the location where the dealer maintained its inventory, rather than the various locations where leased equipment might have otherwise been physically located.

The Court adopted its reasoning in EXLP Leasing to the varying claims and facts in the consolidated cases. The Court upheld the constitutionality of the Tax Code provisions but held EXLP neither expects nor intends for the compressors located in Ward County to permanently remain in Ward County.  Their “permanent” home is the inventory yard and therefore, the proper place for taxation of inventory.  However, specific to this case, the County argued the specific compressors were not “heavy equipment” as listed in the Tax Code. The Court held the definition of “heavy equipment” applied to self-powered machines. The Legislature intended “self-powered” to mean a piece of a machinery or equipment supplied with mechanical power through an internal motor or engine. As a result, EXLP Leasing’s engines are “heavy equipment” falling under the same Tax Code provisions.

If you would like to read this opinion click here. Per Curiam opinion. Companion cases of Reeves County Appraisal District v Midcron (opinion), Reeves County Appraisal District v Valereus Compression Services (opinion) and Loving County Appraisal District v EXLP Leasing (opinion) are linking.

City not liable for takings claim because of alleged failure to enforce ordinances against neighboring property owner/developer

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City of Mason v. William Robin Lee, et al.  04-18-00275-CV (Tex. App. – San Antonio, Nov. 7, 2018).

This is an interlocutory appeal in a regulatory takings case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the takings claims.

The Zeschs’ trust asserted they owned property adjacent to or downhill from property owned by Tyler and Reyeses. The City approved a minor plat and Reyeses began constructing a single-family residence. The Zeschs assert the development caused increase water runoff damaging the property. Additionally, the Zeschs assert the construction generated nuisance level noise and dust. They assert the City committed a regulatory taking by approving the plat, then refusing to enforce various City ordinances against Reyeses. The City filed a plea to the jurisdiction, which was denied. The City took this interlocutory appeal.

The court first noted a justiciable controversy still exists even though the Zeschs settled with Tyler and Reyes and now own the property since a question remains as to whether the Zeschs’ property was damaged due to the City’s actions. Next, to state a valid takings claim, a plaintiff generally must allege: (1) an intentional governmental act; (2) that resulted in his property being taken; (3) for public use. The crux of the Zeschs claims is that the City failed to impose applicable regulations to the subdivision and to the property owned by the Reyeses. The Texas Supreme Court and the Fourth Court have recognized “the law does not recognize takings liability for a failure to” act. A municipality’s failure to enforce applicable zoning ordinances and special permit restrictions does not constitute a regulatory taking.  The court also cited to precedent noting that if the government’s alleged affirmative conduct is nothing beyond allowing private developers to use their property as they wish, the more appropriate remedy is a claim against the private developers rather than a novel taking claim against the government.  Interestingly, in a footnote, the court held that the Penn Central analysis (applicable when a regulation unreasonably interferes with a property owner’s use and enjoyment of the property) does not apply in this type of case because the Zeschs were not complaining of regulations applied to them, but of the lack of regulations applied to others. No intentional conduct occurred so the plea should have been granted.

If you would like to read this opinion click here. Justice Martinez, Justice Chapa and Justice Rios.  Memorandum Opinion by Justice Rios.  The docket page with attorney information can be found here.

U.S. 5th Circuit holds promoter of sex convention had standing to sue after City passed ordinance banning convention

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Three Expo Events, LLC v City of Dallas, 17-10632 (5th Cir. October 24, 2018).

This is a First Amendment case involving a sex convention where the U.S. 5th  Circuit reversed an order granting the City’s motion to dismiss.

Three Expo Events, L.L.C. (Three Expo), produces adult love- and sex-themed conventions in major cities of the nation. It held just such a convention in 2015 at the Dallas Convention Center and planned to return in 2016. The 2015 convention, which hosted near nude and sexual activities, drew protesters, but the City originally took the position it could not constitutionally preclude the event in 2016. In preparation for the convention and consistent with its business model, Three Expo formed a local entity (Exotica Dallas) to enter into and hold the lease for the convention. However, the City then passed a resolution banning the event. Three Expo filed suit against the City in federal court and sought a preliminary injunction to prevent the City from enforcing the resolution. The district court denied Three Expo’s motion for a preliminary injunction, and no event took place in Dallas in 2016. However, Three Expo proceeded with the suit alleging violations of the First Amendment, the Equal Protection Clause, and the Bill of Attainder Clause. The City filed a motion to dismiss for lack of jurisdiction, which the trial court granted.  Three Expo appealed.

The panel first analyzed the record and determined the trial court make “clear mistakes of fact” in its findings. While the City tried to argue the interplay between Three Expos and Exotic Dallas prevented a finding the City targeted Three Expos, the “overwhelming” evidence in the record indicated the City “firmly intended to make certain that the Exxxotica convention would not be staged by anyone in the Convention Center in 2016. …Three Expo, the undisputed promoter and proposed presenter of Exxxotica 2016, was banned from presenting Exxxotica 2016” due to the totality of actions by the City. The panel held Three Expo established the three elements required for standing on each of its claims and should be permitted to proceed with its suit. The Court held the trial court committed a “manifest failure to apply the well-established principles of law governing Article III standing to the entire evidence of record in this case.” The dismissal was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Jolly, Dennis and Elrod. Opinion by Justice Dennis. The attorney for Three Expos is listed as J. Michael Murray.  The attorney listed for the  City is James Bickford Pinson

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

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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

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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

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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

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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.