First District holds county attorney could not bring suit against commissioner’s court for budget policies

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Hobbs, Williamson County Attorney v. Dan A. Gattis, et. al., 01-19-00025-CV (Tex. App. – Houston [1st Dist.], Oct. 15, 2020).

This is a declaratory judgment case where the First District Court of Appeals affirmed the dismissal of the County Attorney’s challenge to a commissioner court policy regarding the budget.

Hobbs, acting in his official capacity as the Williamson County Attorney, sued the Williamson County Judge and Williamson County Commissioners, all in their official capacities, seeking a declaratory judgment that certain policies and orders were void for exceeding the power of the Commissioners Court.  The County defendants filed a plea to the jurisdiction which was granted. Hobbs appealed.

Hobbs challenged a policy that appeared to limit the salaries of his employees, even though the budget allocated for his office had sufficient funds.  The County’s plea challenged the pleadings only and were taken as true. The County defendants argued that Hobbs had no authority to bring suit in his official capacity.  Since Hobbs was only complaining about budgetary issues, the defendants did not invade his elected sphere of control. However, the funds had been budgeted for the County Attorney’s office and Hobbs complained of the policies imposed on how those funds were spent (specifically regarding hiring and salary aspects of assistant county attorneys). A commissioner’s court has broad discretion on budgetary decisions, and such decisions are ordinarily protected from judicial scrutiny by the separation of powers doctrine. But it is limited by certain judicial controls. A commissioner’s court and county officers may not interfere with or usurp the duties delegated by the Texas Constitution and by statutes to independent county officials and their employees.  However, the live pleadings did not list a controversy where potential employees did not accept employment due to the limits or that any other employees were affected. Alleging the policies could hamper Hobb’s office is an allegation of an uncertain or contingent future controversy, not an allegation of a live controversy.  Further, the live pleadings do not show Hobbs, in his official capacity, suffered a distinct and individualized injury. Hobbs acknowledged in his pleading that the county attorney has no individual stake differing from that of other Williamson County elected officials since he is suing in his official capacity only.  A district court has certain constitutional supervisory controls of the commissioner’s court; however, those require an act that is illegal, unreasonable or arbitrary. The challenged policy does not necessarily reduce any employee salary as compared to the amount adopted in the budget. Given the broad budgetary discretion of the commissioner’s court, Hobbs failed to allege facts triggering the district court’s constitutional supervisory control. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Kelly, Goodman, and Countiss.  Opinion by Justice Kelly.

San Antonio Court of Appeals holds forfeited councilmember can only seek reinstatement through quo warranto proceeding

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City of Leon Valley v. Benny Martinez, 04-19-00879-CV (Tex. App. – San Antonio, August 19, 2020, no pet. h.)

This is a council forfeiture case which the San Antonio Court of Appeals held could only be brought in a quo warranto proceeding.

Section 3.12 of the city charter describes the procedures for council investigations. Benny Martinez was a sitting city council member. After several complaints were filed against him for alleged charter violations the city council held §3.12 hearings. The city council ultimately declared he forfeited his place on the council and removed him. Martinez sued, alleging the procedures used to remove him from office violated his due process rights. He sought a declaratory judgment “to determine [his] right to be reinstated following his removal [from Place 4].”  The city filed a plea to the jurisdiction, which was denied. The city filed this interlocutory appeal.

A writ of quo warranto is an extraordinary remedy available to determine disputed questions about the proper person entitled to hold a public office and exercise its functions. See generally Tex. Civ. Prac. & Rem. Code § 66.001. The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning who may hold such office. The court held the plain and unambiguous language of the quo warranto statute confers standing exclusively on the State, not a private litigant. While Martinez asserted his removal was void (thereby trying to fall within an exception to the exclusivity), the court held none of Martinez’s factual allegations allege void acts, only voidable acts if proven. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Martinez, Justice Alvarez and Justice Rios. Opinion by Justice Alvarez.

 

 

The Thirteenth Court of Appeals held trial court must use substantial evidence standard when reviewing SOB permit denials

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Larry Mark Polsky, esq. v. Sheriff Omar Lucio and Cameron County, No. 13-19-00062-CV (Tex. App.—Corpus Christi September 24, 2020) (mem. op.).

In this sexually-oriented business case, the 13th Court of Appeals reversed the grant of a dismissal order in favor of the County and Sheriff.

The plaintiff filed an application for a permit with the County to open a sexually oriented business near a public beach in Cameron County.  The Sheriff denied the permit on the basis that the public beach was a “public park” as defined by the County.  The plaintiff appealed to the governing body of the County which held a hearing. The County upheld the denial of the permit.  The plaintiff appealed to the trial court, who used the “abuse of discretion” standard to uphold the County’s decision.  The plaintiff then appealed to the Court of Appeals.

Counties have the authority to regulate sexually oriented business locations under Chapter 243 of the Texas Local Government Code.   This County had a regulation prohibiting a sexually oriented business from opening within 1500 feet of a public park.  The County interpreted the regulation to mean that a public beach is a public park.  The Court of Appeals held “[c]ontrary to the County’s position when cities and counties undertake the regulation of SOBs, they do so in an administrative capacity, and as such, the denial of an SOB permit is reviewed under the substantial evidence rule.”  Under the substantial evidence rule, the analysis is whether substantial evidence supports the government’s decision.  This is in contrast to the abuse of discretion standard which allows a court to overturn a decision only if the government abused its discretion in making the decision.

The Court of Appeals held that the trial court used the wrong standard and remanded the case back to the trial court.

If you would like to read this opinion click here.   The panel consists of Justices Benavides, Longoria, and Perkes. Opinion by Justice Perkes.

Amarillo Court of Appeals holds findings of fact and conclusions of law improper for plea to the jurisdiction and remanded annexation case for trial

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Hill, et al. v City of Fair Oaks Ranch, 07-19-00037-CV (Tex. App. – Amarillo, Sep. 16, 2020)(mem. Op).

This is an annexation dispute where the Amarillo Court of Appeals reversed the grant of the City’s plea to the jurisdiction and remanded for trial.

In 2015 and 2016, the City was a general-law municipality and it did not annex any properties during those years. In 2017 it became a home-rule city and later that year adopted eleven annexation ordinances. Property owners challenged five of the ordinances. The five annexations added 20% to the City’s geographic area. The property owners challenge one annexation for violating the 1000-ft width requirement, and all five asserting they exceeded the maximum amount allowed by law for annexations. The City filed a plea to the jurisdiction, which the trial court granted. The owners appealed.

Chapter 43 of the Texas Local Government Code (dealing with annexation) waives immunity in limited circumstances. The issue is therefore only one of standing where owners have standing to challenge void ordinances but not procedural irregularities in the adoption process. Here, the landowners challenged the City’s involuntary annexation of the five contested areas as being void ab initio.  While the court acknowledged the owners did not properly brief the 1000-ft arguments, they did properly allege the annexations exceeded the area allowed within a given year under § 43.055.  Those allegations, if proven, would establish that the City’s annexation ordinances are void, not merely voidable.  The court determined that because the plea must be analyzed “under the rubric of a summary judgment” findings of fact and conclusions of law are not proper because there has been no conventional trial on the merits and are superfluous.  In closing, the court noted the parties “would have this court drift into the merits by engaging in statutory construction of the relevant statutes and determining whether the City violated those statutes. Such an analysis would be premature and beyond the scope of a de novo review…”  As a result, the order granting the plea was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Pirtle, Parker and Doss.

The Third Court of Appeals held that no implied authority exists for actions of a state agency without a showing that the implied authority is required to effectively perform a statutorily expressed responsibility.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

University of Texas at Austin President Jay Hartzell, et al. v. S.O., et al., No. 03-19-00131-CV (Tex. App.—Austin September 4, 2020).

In this ultra virus University case, the plaintiff sued University officials for exceeding their authority in attempting to revoke her Ph.D after she had already graduated from the University.    The Court of Appeals held that the University did exceed its authority in attempting to revoke her earned degree because they do not have specific statutory authority to revoke degrees and the authority to revoke degrees is not essential to its statutory authority to award degrees.

The plaintiff was awarded a Ph.D in 2008.  In 2012, the University conducted an investigation and attempted to revoke her Ph.D for academic misconduct in 2014.  The plaintiff sued the University stating that her due process rights were violated by the University’s procedure.  The University undid its revocation and instituted a different procedure to investigate the possibility of revoking the plaintiff’s degree again.  In response to the University’s renewed efforts, the plaintiff sued the University in this suit as an ultra vires claim.  The University defendants filed a plea to the jurisdiction arguing they had the authority to revoke the degree because its rules allowed it and because the authority to revoke degrees is implied with the authority to award degrees.  This case has been through the appellate process once on the issue of ripeness.  The appellate court held that her complaint was ripe and the case was sent back to the trial court.  Upon return, the trial court granted-in-part and denied-in-part the plea.  In this appeal, the issue is whether the University has the authority to revoke degrees, the basis of the plaintiff’s ultra vires claim.

An ultra vires claim waives immunity if the plaintiff can show that an official’s conduct exceeded their granted authority.  Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).  State agencies, like the University, only have the authority that they are given by statute and may only adopt rules pursuant to their statutory authority.  Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008).  State law gives a University the authority to “award” a degree, but not to revoke one.  Tex. Educ. Code § 65.31(b).  Authority can be implied if the agency needs the power in order to allow the agency to effectively carry out the functions necessary for its expressed authority.  Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192-93 (Tex. 2007).   The Court of Appeals held that the authority to award degrees does not require the authority to revoked degrees, and therefore revoking a degree after a student has earned it and graduated is an ultra vires act waiving sovereign immunity.

The Court also affirmed the trial court’s denial of attorney’s fees from the plaintiff.  Even though the plaintiff prevailed, the legal questions were ones that needed to be decided and an appellate court gives a trial court wide discretion in determining attorney’s fees so long there is no abuse of discretion.

Justice Kelly issued a concurring and dissenting opinion stating that the University does have the authority to revoke a student’s degree, but that the claims are not ripe.

If you would like to read this opinion click here.   Panel consists of Justices Goodwin, Baker, and Kelly. Opinion by Justice Thomas Baker.  Concurring/dissenting opinion by Justice Kelly can be found here.

Dallas Court of Appeals holds property owners failed to establish jurisdiction in annexation case where City was prevented from holding first reading of annexation ordinance

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City of Terrell, Texas, et al. v. Frederick George Edmonds, et al., 05-19-01248-CV  and 05-19-01382-CV  (Tex. App. – Dallas, September 8, 2020)

These are consolidated appeals from the case where several property owners sought to prevent annexation of a 1,000-foot wide strip of land. The Dallas Court of Appeals reversed the injunction order and dismissed the claims.

The City is surrounded by four major entryways and sought to annex 1,000-foot strips along each highway. The areas were divided into discrete subsections for annexation. The City’s Home Rule Charter requires that a proposed ordinance must be considered at two separate meetings for the ordinance to be effective. The agenda designated the proposed annexation areas into 10 individual ordinances, intending to annex separate phases over time.  However, before the first ordinance reading could occur, the plaintiffs obtained a temporary restraining order against the City. Plaintiff’s sought declaratory relief under the Texas Open Meetings Act (“TOMA”), Chapter 43 of the Texas Local Government Code (which regulates annexations) and injunction relief. The City filed a plea to the jurisdiction. However, the trial court conducted a temporary injunctive hearing and granted the temporary relief. The City appealed the injunction order.  Approximately thirty days after the injunction order, the trial court denied the City’s plea to the jurisdiction. The City filed a separate appeal.

As to the temporary injunction order, the City argued the issue was not yet ripe as the first reading of an ordinance is not the passage of an ordinance subjecting the plaintiffs to a likely injury. After analyzing the record, the panel held the City had taken no action to violate either (i) the City Charter or (ii) the Texas Local Government Code because the City had made no final decision regarding the proposed annexation ordinances.  The trial court lacked subject-matter jurisdiction to grant the TRO and injunction. Further, quo warranto is the only means to challenge annexation proceedings which are not void from the start. As a result, the plaintiffs cannot circumvent the quo warranto doctrine by bringing a TOMA claim. The court reversed the granting of the injunction and dismissed the plaintiffs’ claims based on a lack of jurisdiction.

If you would like to read this opinion click here.  Panel consists of Justice Schenck,
Justice Osborne and Justice Pedersen.

 

Fort Worth Court of Appeals holds trial court lacked jurisdiction involving school district’s disciplinary decision

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This is an interlocutory appeal from the denial of a plea to the jurisdiction filed by Northwest Independent School District.

Plaintiffs sued Northwest ISD on behalf of their minor child, C.R., seeking a temporary restraining order and injunctive relief based on the violation of C.R.’s rights to freedom of speech, freedom of association, and procedural and substantive due process. Parents allege that Northwest ISD enforced its “zero tolerance” policy when a search team found a substance in C.R.’s vehicle that was alleged to be marijuana. Parents utilized the Northwest ISD three-level appeal process. Ultimately, the consequences for C.R was assignment to an alternative school program and exclusion from drill team. Northwest ISD filed a plea to the jurisdiction asserting disciplinary decisions under Chapter 37 of the Texas Education Code could not be appealed.  The trial court granted the temporary restraining order and denied the plea to the jurisdiction.  Northwest ISD appealed.

Regarding discipline, the court held Chapter 37 expressly states such decisions are final and cannot be appealed. Therefore, the trial court lacked jurisdiction to consider Northwest ISD’s decision. The Court then held that “students do not possess a constitutionally-protected interest in their participation in extracurricular activities,” such as drill team. Parents’ claim of a constitutionally protected interest in their monetary investment in drill team was therefore invalid. Regarding the due process claims, the Court held that transferring C.R. to an alternative education program did not deprive C.R. of her right to receive an education. Further, there was no due process violation by infringing on C.R.’s right to her “good name and reputation.” Finally, the Court found the appeal process laid followed by Northwest ISD did not implicate due process violations. As a result, the plea should have been granted.

If you would like to read this opinion click here.  The panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Homeowners Association Had Standing to Sue Planning and Zoning Commission for Mandamus Relief

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 Escalera Ranch Owners’ Ass’n, Inc. v. Schroeder, 07-19-00210-CV, 2020 WL 4772973 (Tex. App.—Amarillo Aug. 17, 2020, no pet. h.)

This is an interlocutory appeal from the trial court’s order granting the plea to the jurisdiction.

In April of 2018, the City of Georgetown’s Planning and Zoning Commission (“Commission”) approved a plat for a new 89-home subdivision to be located adjacent to and north of an existing residential subdivision known as Escalera Ranch. The sole means of access to the new subdivision was through a residential street that provides access to and through the Escalera Ranch. The homeowner’s association of Escalera Ranch (“Association”) sued the Commission under mandamus seeking to invalidate the plat. The Association also requested a temporary injunction to halt the development of the subdivision. The Commission filed a plea to the jurisdiction which was granted and the Association appealed.

To enjoin the actions of a governmental body, an individual must plead and prove a “special injury,” by alleging how the person has been damaged beyond the same damage to a member of the general public. The Association alleged new residential subdivision would create a material increase in traffic as one street would serve as the sole inlet for both subdivisions. The association also alleged the added congestion creates a potential safety risk to the safety and welfare of neighborhood residents because the street served as the only emergency vehicle access to the neighborhood. Based upon those allegations, the court found Association’s members have an interest peculiar and distinguishable from the general public. Further, the Association alleged the Commission abused its discretion by approving a plat that did not comply with the City’s fire code. The court found the act of approving the plat was ministerial only if the plat conformed to applicable regulations, and if it does not conform, the act is not ministerial. If the Commission approved a plat that failed to comply with applicable regulations, it could constitute an abuse of discretion, subject to mandamus relief.

If you would like to read this opinion click here. The panel consists of Justices Pirtle, Paker and Doss.  Opinion by Justice Parker.

San Antonio Court of Appeals holds governmental immunity bars both suit and liability where the ‘only plausible remedy’ is invalidation of a government contract.

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City of San Antonio v. Patrick Von Dohlen, et al., 04-20-00071-CV (Tex. App.—San Antonio Aug. 19, 2020)

 This is an interlocutory appeal from the denial of a plea to the jurisdiction and Rule 91a motion to dismiss filed by the City of San Antonio.

Plaintiffs Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri sued the City of San Antonio (“City”) seeking declaratory and injunctive relief.  Plaintiffs alleged that the City violated Government Code Chapter 2400 by continuing to exclude Chick-fil-A from operating a restaurant in the City’s airport based on Chick-fil-A’s financial support for “certain religious organizations that oppose homosexual behavior.”  Section 2400.002 of the Texas Government Code specifically prohibits governmental entities from taking any adverse action against any person or business based on “membership in, affiliation with, contribution, donation, or other support provided to a religious organization.”  This legislation took effect on September 1, 2019, more than five months after the San Antonio City Council voted to implement an amended concession agreement that required Chick-fil-A to be replaced with a different vendor.  The City filed a plea to the jurisdiction, asserting governmental immunity, and a Rule 91a motion to dismiss for lack of standing, both of which the trial court denied.  The City then appealed.

The Fourth Court of Appeals determined that although a plaintiff may properly sue for declaratory and injunctive relief when the governmental entity and its officers acted without legal or statutory authority, such a suit is precluded by governmental immunity if the purpose or result is to cancel or nullify a valid contract with the entity.  In this case, the court examined the nature of the plaintiffs’ claims and held that even though the plaintiffs purportedly sought only prospective relief against the City, the only plausible remedy for their claims was nullification of the amended concession agreement.  The court agreed with the City and found that plaintiffs’ suit sought to “undo and invalidate a contract previously approved by the city council, compel the City to re-open the contract approval process, and require the City to re-award the contract to a subcontractor that will operate a Chick-fil-A restaurant in the airport.”  Furthermore, where the “only plausible remedy” for the plaintiff’s claim is invalidation of a government contract, governmental immunity bars both suit and liability.  As a result, the plea should have been granted.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Corpus Christi Court of Appeals held that a plaintiff does not have standing to bring suit, or merit a temporary injunction, where the plaintiff has not alleged an injury distinct from the public at large.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Concerned Citizens of Palm Valley, Inc. v. City of Palm Valley, 13-20-00006-CV (Tex. App.—Corpus Christi, August 13, 2020) (mem.op.).

In this taxpayer suit, the plaintiffs allege that the City is spending money on a private golf course in an unconstitutional manner, but the Court held that the denial of a temporary injunction was appropriate because the plaintiffs failed to show an injury distinct from the general public.

The plaintiffs are a group who oppose the City’s use of funds on a private golf course.  They sued the City under Texas Constitutional Article 3, Section 52 that states that A City cannot spend money on private property.  The plaintiffs sought a declaratory judgment preventing expenditures as well as temporary and permanent injunctions.  The trial court denied the temporary injunction because there was insufficient proof that the City was in violation of the Texas Constitution.  The plaintiffs appealed.  The Court of Appeals affirmed the trial court’s order, but on the ground that the plaintiffs have not alleged standing for its claims.

To present a claim for a declaratory judgment or to be able to be granted a temporary injunction, a plaintiff has to prove an injury distinct from the general public.  Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).  A citizen cannot bring suit against a governmental entity to require it to follow legal requirements if it does not have a separate injury.  While these arguments were not made by the City, the Court of Appeals held that there was insufficient evidence of a particularized injury for standing for the temporary injunction.  The Court affirmed the trial court’s denial of the temporary injunction.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras and Justices Longoria and Hinojosa.  Opinion by Chief Justice Contreras.

Beaumont Court of Appeals holds pro se Plaintiff did not establish entitlement to injunctive relief to prevent demolition of building

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Rema Charles Wolf v. City of Port Arthur, 09-19-00047-CV, (Tex. App – Beaumont, Aug. 6, 2020)

This is an interlocutory appeal from the denial of a temporary injunction request by a pro se property owner.

Pro se Plaintiff Wolf sued the City seeking a temporary restraining order and temporary injunction relief asserting the City failed to grant her a permit to repair a building she owns after Hurricane Harvey.  According to Wolf, the building “was never hazardous for anybody[.]”  The petition made claims against the City for fraud, harassment, and trespass, and sought damages. She also sought a restraining order to prevent the City from demolishing the building. The trial court granted the TRO and set the temporary injunction for a hearing. The  City demolished the building. The City filed a plea to the jurisdiction asserting The City also alleged that § 214.0012 of the Texas Local Government Code provides the exclusive remedy and basis for judicial review of actions related to the City’s Construction Board of Adjustments and Appeals. In a second plea, the City produced evidence of a public hearing on the demolition and that Wolf signed in and presented.  After the public hearing, the Board entered a ninety-day raze-or-repair order and provided it to Wolf. According to the plea, the City sent Wolf a letter on October 25, 2018, that notified her of the upcoming demolition, demolition began on November 15, 2018, and the demolition was two-thirds completed when the City received notice of the TRO.  After a temporary injunction hearing, the trial court denied the temporary relief and finding the plea was moot.

For a temporary injunction, a review of a trial court order is limited.  In this case, several of Wolf’s issues on appeal complain about matters not within the scope of the order being appealed. The record includes no appealable ruling, order, or judgment granting or denying damages or some of the other relief requested by Wolf. As a result, the court of appeals lacks jurisdiction over such requests.  “An appeal from an order on a temporary injunction becomes moot when the act sought to be enjoined occurs.” In this case, the remainder of the building was demolished.   The trial court expressly stated at the conclusion of the hearing that it had not found sufficient evidence of irreparable loss. Deferring to the trial court as fact finder, the court of appeals held the trial court did not abuse its discretion in denying the injunctive relief.

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

Fourth Court of Appeals holds no jurisdiction exists for ex-councilmember to sue after office was declared forfeit for charter violations – quo warranto is exclusive remedy

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City of Leon Valley v Martinez, 04-19-00879-CV (Tex. App. — San Antonio, August 19, 2020)

This is a suit by an ousted city council member to recover his position. The San Antonino Court of Appeals held the exclusive remedy in this situation was a quo warranto lawsuit brought by the State.

After the City received complaints from several City employees about then councilmember Martinez’s conduct, the City Council investigated the complaints pursuant to the city charter. The City Council held several hearings, received testimony from several witnesses, and ultimately determined that Martinez had violated the city charter. The City Council removed Martinez, appointed a replacement, and the replacement was sworn in and began functioning.  Martinez sued asserting he was denied his due process rights and sought a determination of his right to be reinstated.  The City filed a plea to the jurisdiction, which was denied. The City appealed.

The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning the proper person entitled to hold a public office and exercise its functions. The plain and unambiguous language of the quo warranto statute confers standing to lodge such a challenge on the State, not a private litigant. A quo warranto proceeding is the exclusive remedy to test the right of an officer to hold office. Martinez’s attacks on the type of notice he should have been provided and the number of votes required to remove him must be brought by the State.  As a result, the plea should have been granted.

If you would like to read this opinion click here. The panel consists of Justices Alvarez, Martinez and Rios. Opinion by Justice Alvarez.

 

 

Waco Court of Appeals holds an allegation of overzealous code enforcement actions is inadequate to establish a substantive due process violation when regulations are enforceable.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

House of Praise Ministries, Inc. v. City of Red Oak, Texas, 10-19-00195-CV (Tex. App.—Waco, Aug. 6, 2020).

In this substantive due process case, the Waco Court of Appeals affirmed a trial court’s grant of a plea to the jurisdiction because the plaintiff did not bring any allegations that rose to the level of a substantive due process violation for code enforcement on its property.

The plaintiff is the owner of a piece of property in Red Oak, Texas that was the subject of code enforcement actions including substandard building declaration in municipal court.  The plaintiff initially brought claims for regulatory taking, procedural due process, and substantive due process based on the municipal court case determining that the buildings on its property were substandard.  In an earlier ruling by the trial court and this court of appeals, the regulatory taking and procedural due process claims were dismissed, but the plaintiff was given the opportunity to replead the substantive due process claim. The plaintiff replead the substantive due process claim including allegations that the City’s offered amortization agreement, overzealous code enforcement actions, and premature lis pendens filing violated its substantive due process rights.  The trial court granted the City’s plea to the jurisdiction related to the substantive due process claim.

To present a substantive due process claim, the plaintiff must prove that the government deprived the plaintiff of a constitutionally protectable property interest capriciously and arbitrarily.  City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.—Amarillo 1996, writ denied).  The Court of Appeals held that none of the three allegations met this standard.  The amortization agreement was never entered into by the plaintiff and so did not deprive it of any rights. The Court of Appeals then held that “conclusory allegations that the code enforcement officer enforced the City’s regulations arbitrarily and capriciously are inadequate, standing alone, to support a substantive due process claim.”  The Court also noted that there was no allegation that the regulations themselves were an issue.  Finally, the Court held that a lis pendens filing, which puts potential property purchasers on notice that an action against a property is currently being brought, does not violate substantive due process even if filed prematurely, where no other evidence of capriciousness or arbitrariness in filing the lis pendens.  The Court of Appeals affirmed the trial court’s dismissal of the case.

If you would like to read this opinion click here.  Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Justice John E. Neill.

14th Court of Appeals holds waiver of immunity in TCEQ SOAH hearing need not be by express statutory language

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Hyde v Harrison County, 14-18-00628-CV (Tex. App. – Houston [14th Dist.], July 30, 2020)

Harrison County (the “County”) owns and operates underground storage tanks at its road and bridge department and at its airport. A Texas Commission on Environmental Quality (the “Commission”) investigator determined the County violated the Texas Water Code by not providing a release detection for the pressurized piping. The Commission initiated an administrative enforcement action against the County. The Commission sought an administrative penalty of $5,626 against the County. At the contested case hearing at the State Office of Administrative Hearings (“SOAH”) the SOAH judge assessed an administrative penalty against the County. The County timely filed a petition in district court and argued the SOAH judge did not have jurisdiction over the County. The trial court agreed with the County and vacated the SOAH order. The Commission appealed.

The Court first held no express statutory waiver of immunity exists for the administrative proceedings or penalties in the Water Code. However, the court noted that there are limited circumstances where waiver need not be statutorily expressed. The Water Code requires such tanks comply with Commission requirements for pressurized piping release detection equipment. When a statutory context in which a statute defines “person” to include governmental entities, a statute imposes liability on a “person,” and construing the statute not to waive immunity would make part of the statutory scheme meaningless, the court may find a waiver. The court further noted that  § 7.051 allows the Commission to lower a penalty if the owner contributes to supplemental projects, but notes non-governmental entities cannot use this option if the project is necessary to bring the owner into compliance.  The Commission is also required to develop a policy to prevent “regulated entities” from avoiding compliance through the use of such supplemental projects. These provisions would be useless if governmental entities were not subject to regulation and penalties. The court concluded “…that applying the statutory definition of ‘person’ from Government Code section 311.005 to Water Code section 7.051 shows clear legislative intent to waive governmental immunity against assessment of an administrative penalty under section 7.051 because the context of section 7.051 affords no other reasonable construction.” As a result, the trial court erred in vacating the SOAH order.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, Justices Wise and Hassan. Opinion by Chief Justice Frost.

 

U.S. 5th Circuit holds a board reprimand against an elected official for speech on a matter of public concern is an actionable First Amendment claim under § 1983.

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Wilson v. Houston Community College System, 19-20237 (U.S. 5th Cir. April 7, 2020)

This is a First Amendment/§1983 case where a former member of the board of trustees claimed the College censured him in violation of his First Amendment Rights. The U.S. Fifth Circuit Court of Appeals reinstated the plaintiff’s First Amendment claims but sustained the dismissal of his declaratory and injunction claim.

Houston Community College System (“HCC”) is a public college system in the Houston area. HCC is controlled by a board of nine publicly elected trustees, one of whom was Wilson. Wilson publicly chastised HCC on various occasions for its policy decisions and even filed multiple state court lawsuits including one to prohibit videoconferencing votes as being illegal under the bylaws and in excluding him from meetings. The Board of Trustees held a hearing and issued a censure resolution which  chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. Once censured, Wilson brought §1983 claims under the First Amendment, including declaratory and injunctive relief. The trial court granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction due to a non-distinct injury. In August 2019, Wilson resigned. He was not re-elected.

In the context of free speech, “the governmental action need not have a direct effect on the exercise of First Amendment rights . . . [but] must have caused or must threaten to cause a direct injury to the plaintiffs.” The trial court held the censure did not forbid Wilson from performing his official duties or speaking publicly. Disagreeing with the trial court, the 5th Circuit held  Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Further, a free speech violation giving rise to a reputational injury is an injury in fact and properly states First Amendment standing. However, Wilson’s claims for declaratory and injunctive relief regarding the application of the Board’s censure and Code of Conduct are moot given they are no longer live controversies.

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