Fort Worth Court of Appeals holds injunctive relief not available to stop enforcement of ordinance regulating gas/oil production

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The Town of Flower Mound, Texas, et al.  v. EagleRidge Operating, LLC, 02-18-00392-CV, (Fort Worth, Aug. 22, 2019)

This is an interlocutor appeal in a temporary injunction case where the Fort Worth Court of Appeals held the zoning restriction on oil/gas equipment at issue was a penal statute and no vested property right existed, depriving the trial court of jurisdiction to issue a temporary injunction. 

Plaintiffs took over operation of a series of oil/gas wells in the Town. The Town passed an ordinance regulating operations, the removal of waste water and hours of operation. The ordinance stated as part of its purpose that  natural gas drilling and production operations involve or otherwise impact the Town’s environment, infrastructure, and related public health, welfare, and safety matters.  In 2018 Plaintiff filed 3 actions with the board of adjustment (BOA) and board of oil and gas appeals (OGA) regarding variances, which were denied. The Town issued several criminal citations for after hour operation and failure to remove wastewater. The Plaintiff sought a TRO and injunction to prevent the enforcement of the ordinance, which was granted. The Town, BOA and OGA appealed.

The basic test as to whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to an individual. A public wrong involves the “violation of public rights and duties, which affect the whole community, considered as a community, and are considered crimes; whereas individual wrongs are infringements of private or civil rights belonging to individuals, considered as individuals, and constitute civil injuries.”  When an ordinance’s primary purpose is to protect the welfare of a municipality’s citizens, it “is clearly addressing a wrong to the public at large” and is a penal.  The court held the zoning ordinance was penal in nature. To be entitled to injunctive relief, the Plaintiff had the burden to demonstrate irreparable injury to a vested property right. Contrary to Plaintiff’s position, allegations of injury to an interest in real property does not equate to irreparable injury of a vested property right. Increases in operating costs does not equate to irreparable harm to their mineral interests. Loss of profitability, alone, also does to equate to irreparable harm to their mineral interest. As a result, Plaintiff is not entitled to injunctive relief to prevent enforcement of such a penal ordinance. Under sections of Tex. Loc. Gov’t Code chapter 211 (dealing with BOA and appeals), no injunction is textually available for an appeal from the BOA to a district court, only from an official to the BOA. The Legislature made a distinction between a restraining order and an injunction, and no injunctive relief is available under Chapter 211 for an appeal to district court from a BOA decision. 

Chief Justice Sudderth concerned in a majority of the opinion, but dissented as to the interpretation under Chapter 211. He opinioned a temporary restraining order is a stopgap, placeholding measure to preserve the status quo 14 days, just until a litigant’s application for temporary injunction can be heard.  For practical purposes, depriving the trial court of the ability to extend the restrained enforcement makes little sense. 

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Gabriel, visiting Judge Wallach.  Memorandum opinion by visiting judge Wallach. 

Developer properly pleaded claims County failed to maintain roadways, Fort Worth Court of Appeals says

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Wise County, et al v. Katherine Mastropiero02-18-00378-CV (Tex. App. – Fort Worth, August 9, 2019)

In this case, the Fort Worth Court of Appeals held that the district court had jurisdiction to hear a property owner’s claims the County must maintain roads in her subdivision.

Mastropiero (the developer) began to develop Prairie View Estates, a subdivision in Wise County. In Phase Two of the subdivision, the county refused to maintain the roadways. The plat described several roads and stated that the roads were “dedicate[d] to the public.” Mastropiero alleged that the owners, residents, and members of the public have used the roads continuously ever since. The final plat was then endorsed and filed in the County’s records.  Mastropiero asserted she did not have to file a maintenance bond after the  County accepted the roads but that the County was required to maintain the roads. She sued for a failure to maintain, and the County filed a plea to the jurisdiction, which was denied.

Article V, § 8 of the Texas constitution provides that the district court has supervisory jurisdiction to review certain actions of the County Commissioners Court. Mastropiero has alleged that the Commissioners Court failed to perform a clear statutory duty.  The County asserted it never “accepted” the dedication and thus has no statutory duty. Recording a map or plat showing streets or roadways does not, standing alone, constitute a completed dedication as a matter of law. But acceptance does not require a formal act; implied acceptance is also sufficient, including use of the roads by the public. The determination of whether a dedication has been accepted is a question of fact. As a result, from a jurisdictional standpoint, Mastropiero properly pleaded a cause of action against the County. Additionally, the suit against a single commissioner, but only in her official capacity, is the same as a suit against the County. A suit to compel prospective action is viable in an ultra vires suit, as is raised here.  The plea was properly denied.

If you would like to read this opinion, click here. Panel consists of Justices Birdwell, Bassel and Womack. Memorandum opinion by Justice Birdwell. The attorney listed for the County is James Stainton. Ms. Mastropiero appeared pro se.

Eastland Court of Appeals holds erroneously calling the police is a discretionary act exempting employees from ultra vires claims

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The University of Texas of the Permian Basin et al. v. Michael Banzhoff, 11-17-00325-CV (Tex. App. – Eastland, May 31, 2019).

This is an ultra vires and abuse of process case where there Eastland Court of Appeals held the University of Texas at Permian Basin (UTPB) retained governmental immunity.

UTPB hired Banzhoff as a golf coach but terminated him within a year. He was issued a criminal trespass notice not to attend UTPB sporting events. Shortly after his termination, Banzhoff was arrested at the Odessa Country Club for criminal trespass.  Banzhoff sued UTPB, the athletic director (Aicinena) and the interim coach who replaced him (Newman) alleging seven different causes of action. Aicinena and Newman moved to be dismissed under §101.106(e) of the Texas Tort Claims Act (TTCA) and UTPB filed a plea to the jurisdiction. The trial court granted the dismissal as to Aicinena and Newman, and partially granted UTPB’s plea. The trial court allowed the abuse of process and ultra vires claims to proceed. UTPB filed this interlocutory appeal.

As to the abuse of process claim, no waiver of governmental immunity exists for such a tort. To fall within the ultra vires exception, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”  Suits complaining of ultra vires actions must be brought against government officials in their official capacity and may seek only prospective injunctive remedies. In this case, UTPB—a governmental entity—is not a proper defendant to Banzhoff’s ultra vires claim. As to the individuals, the general allegations in the pleadings are insufficient to plead an ultra vires claim against Aicinena or Newman.  Further, Banzhoff failed to plead any facts that support a finding that Aicinena or Newman exceeded any delegated authority, did not perform a ministerial duty, or violated Banzhoff’s constitutional rights.  The court expressly noted the criminal trespass notice in the record was not issued by either Aicinena or Newman and that there was no specific allegation either man called the police regarding Banzhoff’s presence at the Odessa Country Club. However, even if the court were to take Banzhoff’s allegations as true, “he fails to explain how issuing a criminal trespass notice or calling the police—even if done erroneously—are anything but discretionary actions by Aicinena or Newman.”  As a result, the plea should have been granted in its entirety.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Willson and Wright, Senior Justice.   Memorandum Opinion by Chief Justice Bailey.  The attorneys listed for Banzhoff are Gerald K. Fugit and M. Michele Greene.  The attorneys listed for UTPB are Enrique M. Varela and Eric Hudson.

Texas Supreme Court holds navigation district retains immunity from suit by State, but ultra-vires claims against commissioners can proceed to trial

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Chambers-Liberty Counties Navigation District, et al. vs. State of Texas, 17-0365 (Tex. May 10, 2019)

This is an interlocutory appeal in a sovereign immunity/regulatory control case where the Texas Supreme Court held the Chambers-Liberty Counties Navigation District (“District”) retained immunity from suit against the claims brought by the State of Texas. However, the District’s commissioners were not immune from the ultra-vires claims.

The District leased part of a navigation stream to Sustainable Texas Oyster Resource Management, LLC (“STORM”) for specific oyster production. The Texas Parks and Wildlife Department (“Department”) asserted the Department had exclusive authority to regulate oyster production in Texas and sued the District to invalidate a lease issued to STORM.  In the 1950s, the State of Texas conveyed more than 23,000 acres submerged land to the District, which as become prime for oyster cultivation. After the lease was issued to STORM, the company sent no-trespass notices to holders of any oyster-production permits. These permits authorize a holder to “plant oysters and make private beds in public waters.”  STORM claimed exclusive use of the leased submerged land. While the District agrees the water above the submerged land belongs to the State, it asserts it owns the fee simple in the land and can lease its exclusive use. The Department sued the District to invalidate the lease and individual District commissioners for ultra-vires acts associated with the lease. The Department also sought monetary damages for “restitution.” The District and commissioners filed a plea to the jurisdiction, which was partially denied.

The Court first addressed the Department’s claim for monetary damages. It held that Under §311.034 of the Government Code (Texas Code Construction Act), the use of the term “person” in a statute does not waive immunity.  And while the Parks and Wildlife Code allows the Department certain rule making authority, the Department cannot waive immunity by rule which is not contained within the statute.  Since nothing in the applicable Parks and Wildlife Code waives immunity, no waiver for declaratory and monetary claims exists. The Department cannot circumvent the immunity by labeling a claim for monetary damages as “restitution.”    Next, the Court held an ultra-vires claim cannot be brought against the District. However, it can be brought against the commissioners. The Court held the Department properly pled the commissioners acted beyond their lawful authority by entering into the lease. The statute creating the District provided it “rights, privileges and functions” but only those conferred by law. Unlike a home-rule municipality which gets its power from the Texas Constitution, the District is a creature of statute and must look to the Legislature for its authority. Considering the entire regulatory system as a whole, the Court held the powers of the District are limited to navigation. While the statute allows the District to lease land and regulate marine commerce, the question of whether  oyster cultivation qualifies may be precluded when comparing the exclusive power granted to the Department. The Department shall regulate the taking and conservation of fish, oysters, and other marine life. The ultra-vires claims against the commissioners to prospectively enjoin the lease are permitted to go forward.  However, the Court was careful to explain that its holding only allows the State’s claims to go to trial, not whether the State will ultimately win on the present facts.

If you would like to read this opinion click here.  Opinion by Justice Blacklock. The docket page with attorney information can be found here.

Texas Supreme Court holds plaintiff in red-light challenge lawsuit was required to exhaust administrative remedies before filing for injunctive relief

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Garcia v City of Willis, et al., 17-0713 (Tex. May 3, 2019)

In this constitutional challenge to red-light camera case, the Texas Supreme Court held the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim.

Luis Garcia sued the City of Willis on behalf of himself and “others similarly situated” who paid a civil penalty for violating a city ordinance for red-light infractions caught on camera. He sought the invalidation of the ordinance, a refund, or a takings claim. The City filed a plea to the jurisdiction, which was denied by the trial court, but granted by the court of appeals. On appeal to the Supreme Court, the State filed an amicus brief, arguing additional authority in support of the City.

While the City did not initially challenge Garcia’s standing to bring suit, the State’s amicus brief raised the issue, and the Court felt it was required to address that first. After receiving notice from the City of his red-light violation, Garcia paid the requisite civil fine. He has no outstanding fines and does not assert that he plans to violate red-light laws in the future. And for standing purposes, we “assume that [plaintiffs] will conduct their activities within the law,” barring some stated intent otherwise. Because no pending charges exist, Garcia lacks standing for prospective injunctive relief and could not be a class member of others similarly situated who have not paid the fine.  However, he does have standing to seek a refund of his past payment. In this context, immunity is waived only if Garcia paid the fine under duress.  Here, Garcia chose to voluntarily pay a fine and forgo administrative remedies that would have entitled him to an automatic stay of the enforcement of his fine under TEX. TRANSP. CODE § 707.014(a).  Because Garcia could have invoked this automatic reprieve from payment and challenged the notice of violation administratively — but chose not to — he cannot now claim he paid his fine under duress.  Therefore, the City maintains its immunity.

Garcia additionally argues the fine imposed on him amounts to an unconstitutional taking, because the underlying is unconstitutional and because the City failed to conduct the statutorily required engineering study.  He asserts he could not challenge the constitutionality of the fine in the administrative hearing. However, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments. As a result, he failed to exhaust his administrative remedies.

If you would like to read this opinion, click here.  Justice Brown delivered the opinion of the Court.  The docket page with attorney information can be found here.

13th Court of Appeals holds building and standards commission order was final, so could not be collaterally attacked under TOMA

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Harker Heights Condominiums, LLC v. City of Harker Heights, Texas, 13-17-00234-CV (Tex. App. – Corpus Christi, March 28, 2019).

In this case the 13th Court of Appeals affirmed the granting of the City of Harker Heights’ plea to the jurisdiction dismissing a claim for injunctive relief to prevent the demolition of a building.

Harker Heights Condominiums (HHC) owns property on which thirty-three condominium units sit and that are leased to low income residents in need of housing. The City inspected the property, found defects and ordered repair.  The inspector found substandard conditions rising to such a level as to pose substantial danger to life, health and property.  The City’s Building and Standards Commission ordered certain properties repaired within ninety days or be demolished. HHC was able to bring one unit up to code, but was not able to timely repair the remaining units. After the City awarded a demolition contract, HHC sued to prevent destruction of the units. An initial temporary injunction was granted. After HHC added a claim for violating the Texas Open Meetings Act (TOMA) the City filed a plea to the jurisdiction which was granted. HHC appealed.

Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. The local government code provides for judicial review of any decision of a building and standards commission panel, but the “district court’s review shall be limited to a hearing under the substantial evidence rule.” To appeal an order of a building and standards commission, an aggrieved party must file a verified petition in district court within thirty days of the commission’s order.  HHC waited eighty days. HHC asserted the “decision” was actually the City Council decision to award the demolition contract, not the Commission’s decision. However, the City’s award was merely the granting of a contract, not an order outlined in Chapter 214 of the Local Government Code. The court noted that even if the HHC injunctive relief were interpreted to be a proper petition for review under Chapter 214, it was nonetheless untimely. This untimely filing also means HHC’s TOMA suit is untimely as holding otherwise would subject the commission order to impermissible collateral attack. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, Justice Hinojosa and Visiting Judge Dorsey. Memorandum Opinion by Visiting Judge Dorsey. The attorneys listed for the City are Charles D. Olson, Charles Alfred Mackenzie and Burk A. Roberts.  The attorneys listed for HHC are Brandy Wingate Voss,  Ryan D. V. Greene and  G. Alan Waldrop.

Texas Supreme Court holds specific performance is available remedy under waiver of immunity for certain contracts

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Hays Street Bridge Restoration Group v City of San Antonio, 17-0423 (Tex. March 15, 2019)

This is a breach of contract case where the Texas Supreme Court held the waiver of immunity found in TEX. LOC. GOV’T CODE §§ 271.151–.160 (as it existed at the time the contract was executed) also applied to specific performance.

The Hays Street Bridge is a historic cultural landmark in San Antonio. In the 1980s, when the City closed the bridge and Union Pacific Railroad sought to demolish it, a group of citizens formed the restoration group to save the bridge. The City obtained a $2.89 million federal grant administered by the Texas Department of Transportation to fund restoration and the Restoration Group promised, through an MOU, to match any funds for restoration. Over the next decade, the Restoration Group raised and transferred to the City more than $189,000 in cash and arranged for significant in-kind donations.  However, in 2012, it adopted an ordinance authorizing the sale of the property to Alamo Beer Company as part of an economic-incentive package. The Restoration Group sued, alleging the transfer would breach the City’s promise in the MOU to use the funds for repair of the bridge. For its breach of contract claim, the Restoration Group sought only specific performance.  The trial court ordered specific performance, but the court of appeals reversed, holding the City was immune. The Texas Supreme Court granted review.

The Court, citing to its recent holding in Wasson Interests v City of Jacksonville (Wasson II), held the MOU was of a governmental nature and not proprietary. The MOU was made to support the City–State funding agreement for restoration of the bridge and revitalization of the surrounding area. Under the Wasson II four-part test, only the first factor (mandatory v discretionary) leans toward proprietary. As a result, the City maintains immunity unless waived. Section 271.152 of the Local Government Code “waives” the City’s immunity, but that waiver is limited by the provisions found in other portions of the Act. Section 271.153 limits damages, not remedies. Damages equates to money, and specific performance equates to equitable remedies. Since the waiver is not limited by §271.153 on the subject of specific performance, such relief is a remedy encompassed within the waiver.

If you would like to read this opinion, click here.  Opinion by Chief Justice Hecht.

City Manager’s change to policy manual is not a unilateral employment contract says Texas Supreme Court

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City of Denton v Brian Rushing, et al, 17-0336 (Tex. March 15, 2019)

This is an interlocutory appeal from an order denying a plea to the jurisdiction in a breach of contract case. The Texas Supreme Court reversed the denial and dismissed the case.

Rushing, Patterson and Marshall were employees of the Denton Utilities Department. All three worked uncompensated on-call shifts between 2011 and 2015. Policy 106.06 of the City’s Policies and Procedures Manual defines the rights and responsibilities of an on-call employee.  On-call time was listed as uncompensated.  In 2013, the City Manager modified Policy 106.06 and defined an explicit pay schedule for on-call time. These amendments were not approved by the City Council.  Rushing and the others sued the City, asserting Policy 106.06 was a unilateral contract and that they were entitled to payment of on-call time dating back to 2011.  The Court of Appeals held the City Manager’s policy adjustments equated to a unilateral contract, and immunity is waived under §271.152. The Texas Supreme Court granted review.

The Court first held interpreting Policy 106.06 to be a unilateral contract regarding Rushing’s employment conflicts with the disclaimer in the manual that nothing in the manual “ in any way” constitutes terms of a contract of employment.  Further, Policy 106.06 is a provision of a policies and procedures manual and not an ordinance adoption of a contract. Although city ordinances may create enforceable contracts, the Court held it has not previously determined that a municipality’s policies and procedures manual can create an enforceable contract. The Court reversed and rendered a decision for the City.

If you would like to read this opinion, click here. Opinion by Justice Devine.

Texas Supreme Court holds pension board’s amendment to deferred retirement option account was not unconstitutional

Eddington v Dallas Police and Fire Penson Systems, et al.,   17-0058, (Tex. March 8, 2019)

This is a statutory construction case where the Texas Supreme Court held the City of Dallas’s amendment to its pension plan did not violate the Texas Constitution.

Article XVI, Section 66 of the Texas Constitution prohibits the reduction of benefits in certain local public retirement plans.  The Dallas Police and Fire Pension System (“the System”) amended its pension plan to reduce the interest rate paid on Deferred Retirement Option Plan (“DROP”) accounts. After a member is eligible for retirement, the member can choose to continue working and, when leaving active service, draw a higher monthly annuity.  However, a member’s annuity is fixed at retirement age and does not increase with continued service.  While a member continues to work, the System created the DROP option allowing monthly credits to his DROP account, accessible upon leaving active service. In other words, members working past retirement eligibility can choose between a higher annuity on leaving active service, or a lower annuity plus a forced savings account.  The petitioners sued, asserting the amendment to the changed interest rate was unconstitutional. The trial court and appellate court denied petitioners relief.

After analyzing the text of Section 66 and the uncontested facts asserted, the Court held that reducing the interest rate that as-yet-unearned DROP payments will bear does not affect a benefit accrued or granted to employees. Interest already credited to DROP accounts is not impacted. The reduction in DROP account interest is prospective only. Section 66(d) protects “accrued” benefits only. Accrued benefits are those that have been earned by service, not those that may be earned by future service.

Finally, the Court held the trial court did not err in excluding the legislative history evidence submitted and the fiscal notes of the Legislative Budget Board.  The Court reasoned that while the judiciary can consider such information, those are construction aides. Courts should rely heavily on the literal text. The Court determined the text of Section 66 is plain as it affects the parties, so no error was made by the trial court.

If you would like to read this opinion, click here. Chief Justice Hecht delivered the opinion of the Court. Justice Guzman and Justice Brown not sitting. The docket page with attorney information can be found here.

School District substantially complied with TOMA even though it had a glitch with website postings for five months said Amarillo Court of Appeals

Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District, 07-17-00189-CV (Tex. App. – Amarillo, January 9, 2019).

This is a Texas Open Meetings Act (“TOMA”) case where the Amarillo Court of Appeals affirmed a take-nothing judgment in favor of the Pampa Independent School District (“PISD”).

PISD hired Terrell as a teacher on a probationary basis. At the end of the school year the PISD board voted to terminate her. Terrell brought suit asserting PISD committed TOMA violations in twenty-one separate meetings and demanded that all actions taken during those meetings (including her termination) are void. Physical notice for each of the twenty-two challenged meetings was posted to the inside of an external glass door of the administrative building for PISD in a manner in which the public could view them at any hour. These physical notices identified the date, time, and place of each respective meeting. Meeting notices were also posted to PISD’s website…most of the time. Due to an issue arising from a transfer to a new website for PISD, notice of meetings were not posted on PISD’s website from five months.   PISD was unaware of the website glitch, but upon learning of it, the board took corrective action. PISD also only posted notices on the outside bulletin board and not the one inside its administrative offices.   The trial court issued a take-nothing judgment against the Plaintiffs and they appealed.

The panel opinion noted the Texas Supreme Court has indicated that substantial compliance with TOMA’s notice requirements is sufficient. To determine whether a governmental entity substantially complied with the requirements of TOMA, courts look to whether the notice fairly identifies the meeting and “is sufficiently descriptive to alert a reader that a particular subject will be addressed.”  Courts are not to determine whether the entity could have posted a better notice in a better manner; rather they are tasked with determining whether the notice was sufficient to notify the public of the specific meeting and its topics. Physically posting the agendas in a glass case outside the building for all to see at any time was sufficient for substantial compliance under TOMA.  PISD provided sufficient evidence to constitute a good faith effort to post on the website, explained how the glitch occurred and what was done to fix it.  Appellants next argued that PISD violated TOMA by including only a partial description of the place of the meetings, such as “Pampa High School,” without identifying the meeting room, full street address, or name of the city. TOMA requires that the notice identify the “place” of the meeting. The panel held that while it would be more helpful if the notices had identified the specific room, it deem the school title descriptions were sufficiently specific to alert the public of the location of the school board meetings. As a result, the take-nothing judgment was affirmed.

If you would like to read this opinion click here. Panel consists of Justice Campbell, Justice Pirtle and Justice Parker. Opinion by Justice Parker. Thanedar and Terrell were pro se.  Attorneys listed for the  PISD are Jennie C. Knapp  and W. Wade Arnold.

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.

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

Order for City to release documents under PIA and certify compliance was not a “temporary injunction” entitling City to interlocutory appeal says Houston’s 1st District Court of Appeals

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City of Houston v Dolcefino  Communications, et al., 01-17-00979-CV (Tex. App. – Houston [1st Dist.], October 30, 2018

This is an interlocutory appeal in a Public Information Act (“PIA”) case where the First District Court of Appeals determined it lacked interlocutory jurisdiction.

EcoHub was negotiating with the City to be a recycler for the City. When the City declined to utilize them, EcoHub hired Dolcefino, an investigative journalist, to research the City’s recycling contracts. Dolcefino made multiple requests for public records from the City. After not receiving documents Dolcefino believed he was entitled to receive, he brought a petition for writ of mandamus. Dolcefino filed a motion to compel the production of documents responsive to his requests. The City responded that, while it took longer than expected, it already produced most of the documents to Dolcefino. The trial court issued an order 1) ordering production of all responsive documents, 2) that the City certify, in writing, it has provided all responsive documents, 3) produce all non-produced records (noted as non-disclosable under an AG opinion) to the court for in camera inspection, and certify it has complied with all requirements. The City, while providing all in camera documents and having produced all others, still argued the court could not grant the motion to compel as the PIA only contemplates disclosure under a protective order and after certain procedures. Certification is also not required under PIA. The City filed an interlocutory appeal asserting it was appealing the granting of a temporary injunction order.

The court first noted that Tex. Civ. Prac. &  Rem. Code § 51.014(a)(4) gives it interlocutory jurisdiction over an injunction order. However, the order to compel is not truly an injunction. The purpose of a temporary injunction is to preserve the status quo. At one of the hearings the court asked the City whether all documents which were disclosable had been turned over and the City’s attorneys gave two conflicting answers. So, the court ordered the City to figure out the answer and certify it to the court. The trial court’s order does not require the City to perform any action that rises to the level of an injunction. Instead, the order merely attempts to clarify whether the City has complied with the PIA requests, other than the documents that have been submitted to the trial court for in camera review. With no injunction order present, the court does not have interlocutory jurisdiction to hear the appeal.

If you would like to read this opinion click here. Panel consist of Chief Justice Radack, Justice Brown and Justice Caughey. Memorandum Opinion Per Curiam.  The attorneys listed for Dolcefino are Stewart E. Hoffer and Fran Robin Kantor Aden.  The attorneys listed for the  City are  Fernando De Leon, Patricia L. Casey and Suzanne R. Chauvin.

Contract for sale of waste water to golf course is a governmental function and no waiver of immunity exists for breach claim

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City of Merkel v Copeland, 11-16-00323-CV (Tex. App. — Eastland, October 18, 2018). 

This is a governmental immunity/breach of contract claim where the Eastland Court of Appeals reversed the denial of the City’s plea to the jurisdiction. 

The City entered into a contract with Tin Cup Country Club where the City would sell the waste (i.e. effluent) from the City’s waste water treatment plant with a minimum each year and a set amount per gallon. Tin Cup used the waste to water and fertilize the golf course. Copeland and Cully purchased Tin Cup and the contract.  The City later stopped providing water as the quality did not meet state requirements.  Plaintiffs sued for breach of contract. The City filed a plea to the jurisdiction which was denied. The City appealed. 

The court first determined the City was performing a governmental function, not proprietary.  While sale of waste is not a listed function, it is a required sub-component of the governmental function of water and sewer services. The City must get rid of the waste somehow under TCEQ regulations, so selling it is a reasonable means of fulfilling its overall function. The only waiver of immunity would be found in Chapter 271 of the Texas Local Government Code relating to goods or services provided to the entity. Since the City was not purchasing anything (but selling) the issue becomes whether Tin Cup was providing a service. Under section 271.151(B), a contract for the sale of certain acre-feet of reclaimed water is subject to waiver, but that section did not exist when the contract was executed.  As a result, only subsection (A) applies. The contract was not a “service” and was not intended to be a service.  As a result no waiver of immunity exists. The plea should have been granted. 

If you would like to read this opinion click here. Panel consists of Justices Bailey, Chief Justice  Grey (by assignment from Waco) and Wright (retired).