Category Archives: Litigation

Taxpayer lacked standing to challenge Houston drainage fee ordinance despite charter election invalidity

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Elizabeth C. Perez v. Sylvester Turner, et al., 01-16-00985-CV (Tex. App. – Hous. [1st Dist], Oct. 15, 2019)

This is a long standing/multi-opinion dispute challenging the City of Houston’s drainage fee ordinance. Prior summaries found here and here. In this substituted opinion (for an opinion issued in August of 2018), the First District affirmed the granting of the City’s plea to the jurisdiction.

Voters in the City of Houston adopted a dedicated charter amendment for a “Pay-As-You-Go Fund for Drainage and Streets.” It then adopted a regulatory ordinance. One source of funding was a charge imposed on properties directly benefitting from the drainage system. The ballot language for the charter amendment was originally held misleading and invalid. After several disputes from the subsequent ordinance occurred, Perez  brought this ultra-vires claim and sought a judgment declaring the drainage fee ordinance invalid (yet again); an injunction against the assessment, collection, and expenditure of taxes and fees pursuant to the ordinance; and reimbursement, “on behalf of herself and all other similarly situated persons or entities,” of taxes and fees assessed and collected pursuant to the ordinance and paid “under duress.”  The City filed a plea to the jurisdiction asserting Perez lacked standing because she had suffered no particularized injury separate from the public, which was granted. Perez appealed.

The prior judicial declaration that the Charter Amendment is void does not address the Drainage Fee Ordinance. Thus, to the extent that Perez’s claims are based on her allegations the prior opinions invalided the ordinance, such are misplaced. The charter amendment was only needed to shift a portion of ad valorem tax revenue from debt services and was not required for authority to pass a drainage fee ordinance. Local Government Code Chapter 552 provided independent authority for such an ordinance. Perez has pleaded that she paid “illegal” drainage fees, she has cited to no authority declaring illegal the Drainage Fee Ordinance. Further, Perez has to demonstrate she “suffered a particularized injury distinct from that suffered by the general public” by the drainage fees collected.  The municipal fees were assessed to property owners across the City. The payment of municipal fees, like the drainage fees assessed against Perez’s properties here and numerous other properties in the City, does not constitute a particularized injury. Taxpayer standing is an exception to the “particularized injury” requirement.  However, it is not enough for the plaintiff to establish that she is a taxpayer— the plaintiff “may maintain an action solely to challenge proposed illegal expenditures.” A litigant must prove that the government is actually expending money on the activity that the taxpayer challenges; merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough.  Perez asserts the fees were collected illegally.  However, she was unable to establish the City is actually making any “measurable, added expenditure” of funds on illegal, unconstitutional, or statutorily unauthorized activities. As a result, she is not entitled to taxpayer standing. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Lloyd and Justice Kelly. The attorneys listed for the City are Collyn A. Peddie and Patricia L. Casey.  The attorneys listed for Perez are Dylan Benjamen Russell, Andy Taylor  and Joseph O. Slovacek.

Firefighter’s claims against City dismissed since no adverse employment actions occurred; only minor internal decisions

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Billy Fratus v. The City of Beaumont, 09-18-00294-CV (Tex. App. – Beaumont, Oct. 10, 2019).

This is an employment discrimination/retaliation/firefighter case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Fratus was a firefighter who sued for 1) free speech equitable relief and 2) race discrimination and 3) retaliation under Chapter 21 of the Labor Code.  Fratus asserted the Fire Chief, Huff, did not like Fratus was Hispanic and excluded him from meetings, denied him discretionary perks of the job, spoke bad about him, interfered with Fratus’ relationship with his physician while on disability leave, and a host of other assertions centering on personality slights. Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff’s sexual harassment of another employee, and for disagreeing with Chief Huff’s firing of one employee. The City filed a plea to the jurisdiction which was granted. Fratus appealed.

Fratus’ claims for declaratory relief centered only on past allegations.  As a result, it is actually a claim for monetary damages for which the City is immune. Further, claims for equitable relief for constitutional violations “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.” Since Fratus did not sue any individuals, the equitable relief claims are dismissed. To prevail on a retaliation claim based on protected free speech Fratus has to establish, among other things, he spoke out on a matter of public concern. Speech made privately between a speaker and his employer rather than in the context of public debate is generally not of public concern. The record shows Fratus made criticisms to other co-workers, which does not qualify. A retaliation claim is related to but distinct from a discrimination claim, and it focuses upon the employer’s response to the employee’s protected activity. The TCHRA addresses only “ultimate employment decisions” and does not address “every decision made by employers that arguably might have some tangential effect upon employment decisions.”  Actionable adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment evaluations.  The pleadings and record reflect Fratus did not allege any adverse employment decisions, only petty disagreements and internal rifts. Fratus failed to plead a prima facie claim. Fratus’s appellate brief states that he also has an issue under the Texas Open Meetings Act.  However, such does not meet briefing requirements because it lacks citations to the record or to applicable authority and therefore presents nothing for review. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson. Opinion by Justice Johnson.  The attorney listed for Fratus is Laurence Watts.  The attorneys listed for the City are Tyrone Cooper and Sharae Reed.

El Paso Court of Appeals reversed mandamus against JP holding rules applicable to justice/municipal courts allow “electronic” judgments

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In re Lujan, 08-15-00286-CV, 2019 WL 1922765, (Tex. App. – El Paso, April 30, 2019).

This is a mandamus case involving and order the Justice of the Peace for Precinct 6 in El Paso to vacate an order falling outside of his plenary power.  This case involves principles of JP and non-record courts and will be of interest to those attorneys who practice in such courts.

The underlying action was a citation for “Possession of Drug Paraphernalia,” a Class C misdemeanor punishable only by a fine.  Villanueva entered a plea of no contest and payment. The court submitted the information into its case management system; but it is important to note  no written judgment was created or signed by Judge Lujan. Four years later, Villanueva requested a withdrawal of his previous plea and a trial. When Judge Lujan refused, Villanueva filed for a writ of mandamus to a county court in El Paso.  The record included a paper copy of the court’s case management system docket entries, Villanueva’s identifying information, his entered plea, the screen shot of the system’s judgment (adjudged “guilty”), the paid fine amount, and receipt of said payment after acknowledgement by Villanueva that it was a “record.” Ultimately, the county court granted  mandamus petition against Judge Lujan, stating that Lujan never entered a written judgment as required by the applicable procedural rules and failed to set the case for trial. At this point, Lujan filed a motion for a new trial and a notice of intent to appeal.

The pivotal focus in this case is the relationship between justice/municipal courts and the Code of Criminal Procedure and Civil Procedure. Justice and municipal courts are controlled by Chapter 45 of the Code of Criminal Procedure. The El Paso Court of Appeals held that justice and municipal courts are not governed by provisions outside of Chapter 45 if they are expressly included within Chapter 45 provisions. Further, during the Court of Appeals’ analysis refused to hold justice and municipal courts to standards applicable to “indictments and informations,” since justice (and municipal) courts rely on complaints as their charging instruments.  The interconnectivity is often misunderstood. The El Paso Court of Appeals noted 1) along with Chapter 45, chapters the Texas Government Code also apply including Chapter 27 to justice courts, Chapter 29 to municipal courts not of record, and municipal Chapter 30 to municipal courts of record and 2) in the absence of a specific provision, the remainder of the Code of Criminal Procedure most likely applies to justice and municipal courts. The appellate court found provisions within Chapter 45 considered electronically stored records to have the same effect as documents otherwise required to be written. Specifically, the Chapter provided that electronically recorded judgments have the “same force and effect as a written signed judgment.” As a result, the order of mandamus was reversed.

If you would like to read the opinion in its entirety, please click here.  Panel consists of Chief Justice McClure, Justice Rodriguez and Justice Hughes.  Opinion by Justice Rodriguez.

Beaumont Court of Appeals holds firefighter’s last-chance agreement in collective bargaining city deprived trial court of jurisdiction to hear appeal of indefinite suspension

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Michael Scott Nix v. City of Beaumont, 09-18-00407-CV (Tex. App. -Beaumont – Oct. 3, 2019)\

This is an interlocutory appeal in a firefighter suspension case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. He asserted the Collective Bargaining Agreement (“CBA”) was invalid because the City allegedly failed to comply with the Texas Open Meeting Act (“TOMA”) requirements when the CBA was negotiated.  He also asserts the “last chance” agreement he entered into with the Fire Chief was invalid. Nix’s last-chance agreement probated part of the suspension, but noted he could be terminated if he violated any terms of the agreement.  Nix’s suspension in 2015 resulted in the last-chance agreement and the Chief determined he violated the sick leave policy in 2017 resulting in an indefinite suspension. Nix asserts in the absence of a valid contract, the suspensions were invalid, depriving him of due process of law and a protected property interest. The City filed a plea to the jurisdiction, which was granted.  Nix appealed.

TOMA has a limited waiver of immunity. An action taken in violation of TOMA is voidable, not void. When a department head suspends a firefighter for violating a civil service rule, the suspension may be for a reasonable period not to exceed fifteen calendar days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b). The firefighter may accept the suspension or appeal to the Civil Service Commission. If the firefighter disagrees with the Commission, the employee may file suit in district court. The question of whether the City posted the CBA 2012-2015 negotiations in accordance with TOMA is not relevant because it is the CBA 2015-2020 CBA applicable to his underlying challenge to his indefinite suspension in 2017.  The City provided evidence showing proper postings for the negotiation of the 2015-2020 CBA.  When Nix accepted the last-chance agreement in 2015, he had the opportunity to refuse the Chief’s offer and appeal his suspension to the Commission; however, Nix agreed to waive his right to appeal, including the right to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement. Nix waived all rights he may have to file suit against the City as to any issue directly or indirectly related to the last-chance agreement or to his indefinite suspension.  As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson.  Opinion delivered by Chief Justice McKeithen. The attorneys listed for Nix are Melissa Azadeh and Laurence Watts.  The attorneys listed for the City are Sharae Reed and Tyrone Cooper.

12th Court of Appeals holds a regulatory civil enforcement suit did not constitute a taking by a conservation district

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Neches and Trinity Valleys Groundwater Conservation District v. Mountain Pure TX, LLC  12-19-00172-CV (Tex. App. – Tyler, September 18, 2019).

This is a regulatory takings/compliance enforcement case where the Tyler Court of Appeals reversed the denial of a conservation district’s plea to the jurisdiction and dismissed the property owner’s counterclaims.

The District adopted  rules requiring all persons owning a groundwater well to obtain permits to drill and operate the well unless exempt. Mountain Pure owns a spring water bottling plant in Palestine, Texas. Mountain Pure refused to acknowledge that it owns or operates a water well, refused to apply for a permit to operate a water well, failed to file quarterly production reports or pay quarterly production fees and overall refused to acknowledge the District’s authority. Mountain Pure took the position its water came from an “underground formation from which water flows naturally to the surface of the earth.”  Therefore, the District has no authority to regulate spring water. The District filed a compliance suit against Mountain Pure to which Mountain Pure counter-claimed for tortious interference with their lucrative operating contracts and also asserted a takings claim.  The District filed a plea to the jurisdiction as to the counterclaims which was denied. The District appealed.

Governments must sometimes impose restrictions on and regulations affecting the use of private property in order to secure the safety, health, and general welfare of its citizens.  Although those restrictions and regulations sometimes result in inconvenience to owners, the government is not generally required to compensate for accompanying loss.  However, if regulations go too far, they will be recognized as a taking.

A civil enforcement procedure alone cannot serve as the basis of a regulatory takings claim. A denial of access is compensable if the denial of access is substantial and material. Mountain Pure does not contend that the District’s rules and regulations it seeks to enforce are unconstitutional or otherwise invalid. But it maintains that the District is wrongfully attempting to apply them to its property. The record shows that Mountain Pure’s Palestine plant, after the government action, retains a value of $4,090,000. Mountain Pure cannot contend that the District’s action renders its property valueless. The loss of anticipated gains or future profits is not usually considered in a regulatory takings analysis. “The existing and permitted uses of the property constitute the ‘primary expectation’ of the landowner affected by regulation.”  There is no pleading or evidence which show that the application of the groundwater rules, should they be held to apply, will interfere with production and sale of bottled water from the property. If the District is successful, the enforcement of the production reporting rules would represent a restriction on the property’s use. There is no pleading that the imposition of a three cent per 1000 gallons fee will be so onerous as to affect the present use of the property or significantly diminish its economic viability.  Neither a diminution in property value nor a “substantial reduction of the attractiveness of the property to potential purchasers’ will suffice to establish that a taking has occurred.” Neither the District’s rules nor its attempt at their enforcement has deprived Mountain Pure of any reasonable investment backed expectation for bottling water.  There is no showing that the enforcement of the reporting rules and the accompanying fee will affect production. Mountain Pure’s pleadings do not contain facts that allege a compensable denial of access, nor do they show how the District’s suit forced a cessation of operation. The operating lessee’s termination of its lease purchase operating agreement may have been influenced by the District’s civil enforcement suit. But there are no facts pleaded to show it was required by the District’s action. The District’s suit neither denied access to the spring nor prevented its operation. The court held “[i]t is impossible to avoid the conclusion that Mountain Pure’s inverse condemnation claim is no more that its dismissed tortious interference claim thinly disguised as a taking.”  However, no taking has occurred under the facts. No waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Worthen, C.J., Hoyle, J., and Bass, Retired, J., Opinion issued by Justice Bass.  The attorney listed for the district is  John D. Stover.  The attorneys listed for Mountain Pure are Danny R. Crabtree and Jeffrey L. Coe.

Since interlocatory appeal by individual officials stayed proceedings, trial court had no authority to grant or deny City’s plea to the jurisdiction

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City of Brownsville, et al.,  v. Brownsville GMS, 13-19-00467-CV (Tex.App. – Corpus Christi, September 27, 2019).

This is a governmental immunity/contract case where a temporary injunction was sought.  The Corpus Christi court out of Edinburg held the trial court’s failure to rule on the City’s plea to the jurisdiction was not a denial of the City’s plea because a simultaneous separate interlocutory appeal was filed staying the proceedings.

Brownsville GMS, Ltd. (GMS) sued the City of Brownsville (City), the Mayor, and the city commission members complaining of the manner in which the City awarded its waste disposal contract.  GMS obtained a temporary injunction to preclude the City from acting on the award and an order for expedited discovery.  The individuals filed motions to dismiss based on Tex. Civ. Prac. & Rem. Code Ann. § 101.06(e). The City also filed two pleas to the jurisdiction asserting immunity. The trial court scheduled multiple motions to be heard on August 13, 2019. The trial court denied the motions to dismiss during the hearing. The individuals filed an interlocutory appeal during the hearing for the denial. The trial court did not rule on any other motions during the hearing as the proceedings were stayed.

The City also appealed and argued that the trial court’s refusal to rule on its pleas to the jurisdiction invokes the implicit ruling doctrine and cites Thomas v. Long, 207 S.W.3d 334  (Tex. 2006). In Thomas, the implicit ruling was predicated on the trial court’s grant of affirmative relief to Long while at the same time failing to rule on Thomas’s plea to the jurisdiction. The trial court did not have authority to grant the relief Long sought unless it affirmatively determined that it had jurisdiction. Here, the trial court became aware that DeLeon filed an instantaneous interlocutory appeal, thereby staying all proceedings. The trial court correctly recognized it did not have the power to rule on the pleas and adjourned the hearing. Because the trial court had no authority to rule on the pleas it did not implicitly deny the pleas. The appellate court therefore lacks jurisdiction to hear the  City’s appeal.

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

City immune for claims of “general engineering work” since the contract was expressly for a specific project with no generalized work included

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Naismith Engineering, Inc. v. The City of Aransas Pass, 13-18-00402-CV (Tex. App. – Corpus Christi, September 19, 2019)

This is a governmental immunity/contract case where the Corpus Christi court out of Edinburg affirmed the granting of the City’s plea to the jurisdiction.

The City Manager, with council approval, entered into a contract with Naismith Engineering, Inc (NEI) to design improvements to the boat-ramp area of the City’s Conn Brown Harbor (CBH project). The City sued NEI and its surety alleging there were deficiencies related to the CBH project. NEI subsequently counterclaimed to recover outstanding fees for work “general work” performed . NEI alleged that “[NEI] performed work ranging from general project services to general harbor engineering and planning and services for waterline extension….”  The City filed a plea to the jurisdiction as to the counter-claim which was granted.   NEI appealed.

The court declined to “apply the common law of contracts to a governmental immunity question” and held no contract existed for “general services” between the City and NEI. Therefore, no waiver of immunity exists. While NEI attempted to argue its counter-claim included unpaid fees for the CBH project, however, the evidence and statements of counsel made it clear the counter-claim was for other work which was simply near and around the boat ramp. A governmental entity retains immunity from suit as to those claims for monetary damages that are not germane to, connected with, and properly defensive to the entity’s claim. The counterclaim does not arise from the same transaction or occurrence that is the subject matter of the City’s claim and therefore no immunity is waived. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice  Contreras and Justices Longoria and Perkes.  Memorandum Opinion by Justice Longoria. The attorneys listed for the City of Aransas Pass are Matthew B. Cano, James F. McKibben Jr. and Ken Fields.  The attorneys listed for Naismith Engineering are Paul Dodson and John Swallow.

13th Court of Appeals holds no contract necessary for medical providers to sue self-insured school district

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South Coast Spine & Rehabilitation PA v. Brownsville Independent School District,  13-18-00006-CV (Tex. App. – Corpus Christi, September 12, 2019)

This is a governmental immunity/contract case where the Corpus Christi court out of Edinburg reversed the granting of a directed verdict for the school district and remanded the case.

Brownsville Independent School District (BISD) is  a self-insured school district which had a third-party administrator (American Administrative Group [AAG]) handle health benefit claims. South Coast Spine & Rehabilitation, PA, (South Coast) sued seeking payment for out-of-network medical services provided to twenty-seven BISD employees. Each patient executed an “Assignment of Proceeds, Lien, and Authorization,” assigning to South Coast the patient’s benefits under the Plan. South Coast submitted claims for these twenty-seven patients and AAG refused payment. South Coast also named the twenty-seven patients as defendants. BISD subsequently filed a plea to the jurisdiction which was denied, then appealed, and remanded when the appellate court held a written contract between BISD and South Coast was not required in order to establish a waiver of immunity under Tex. Loc. Gov’t Code chapter 271.  On remand and trial, the trial court granted a directed verdict based on an absence of a written contract between South Coast and BISD. South Coast appealed.

The court held that it’s prior interlocutory opinion held  that South Coast could sue BISD as an assignee under the Plan—a contract between BISD and its employees. South Coast Spine & Rehab. PA v. Brownsville Indep. Sch. Dist., No. 13-11-00270-CV, 2014 WL 1789546, at *3–5 (Tex. App.—Corpus Christi–Edinburg Apr. 30, 2014, no pet.). An assignee steps into the shoes of the claim holder—in this case, the patients—and is considered under the law to have suffered the same injury and have the same legal rights as the claim holder. BISD employees are free to choose their own medical providers, and BISD is obligated to pay those medical providers the employee’s assigned benefits to the extent the services are covered by the Plan. The dispositive question, then, was whether and to what extent the Plan covered the out-of-network services provided by South Coast.  Based on the language in the Plan, it specifically covers out-of-network providers to a certain extent.  South Coast only sought from BISD the amount generally paid to out-of-network providers for covered services—60%. The court therefore reversed the directed verdict and remanded.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Hinojosa, and Perkes. Memorandum opinion by Justice Perkes. The attorney listed for South Coast  is Keith Gilbert. The attorney listed for BISD is Baltazar Salazar.

Car accident Plaintiff failed to establish subjective awareness of fault by City, so City retains immunity

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City of Houston v. Francisco Cruz, 14-18-00080-CV (Tex. App. – Houston [14th Dist.], August 27, 2019).

This is a Texas Tort Claim Act (“TTCA”) case involving a motor vehicle accident where the 14th Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the Plaintiff’s claims.

Cruz sued Reyes for damages resulting from a car accident which occurred in November 2015. Cruz alleges Reyes ran a red light at an intersection and collided with Cruz’s vehicle. Reyes moved to add the City of Houston as a third-party defendant. Cruz amended his petition to add the City as well. The City filed a plea to the jurisdiction based on a lack of statutory notice which was denied. The City appealed.

It was not until March of 2017 that Cruz’s lawyer sent a notice letter to the City but listed the client as Francisco Lopez in parts and Cruz in other parts. However, Cruz added the City two weeks after sending the letter. The City contends Cruz was required to give it notice of the claim within 90 days of the accident under the City’s’ charter, but at most within 180 days under the TTCA.  The City submitted affidavits from various custodians noting no notice was received for either Lopez or Cruz.  Cruz responded the City had actual notice because the City was aware of a malfunctioning traffic signal at the intersection on the day the accident occurred. Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient.   Actual notice requires that a governmental unit have “subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries.” When factually the issues of communication are undisputed, the issue of subjective awareness is a question of law. Cruz merely provided information there was “a problem at the intersection” which is insufficient to establish a factual dispute on subjective awareness. Cruz failed to provide an affidavit or explanation as to why further discovery was needed. As a result, the plea should have been granted.

If you would like to read this opinion as click here. Panel consists of Justices Christopher, Bourliot, and Spain.  Memorandum opinion from Justice Bourliot. The attorenys listed for Cruz are Husein Hadimohammadabadi, Jamil Thomas and
Carnegie Harvard Mims III.  The attorney listed for the City is Fernando De Leon

 

Subcontractor did not contract directly with DFW Airport, so no waiver of immunity exists for breach of contract says Dallas COA

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Ruth Torres v. Dallas/Ft Worth International Airport et. al, 05-18-00675-CV (Tex. App. —  Dallas, August, 29, 2019).

This is a breach of contract case where the Dallas Court of Appeals held the trial court was without jurisdiction to hear the claims.

Torres was to provide human resources consulting services to Pursuit of Excellence (POE), a corporation that contracted with DFW to provide airport operations services. POE filed suit against Torres for breach of contract.  Torres answered, counterclaimed, and attempted to bring in the Dallas/Ft.Worth International Airport (DFW).  DFW filed a plea to the jurisdiction, which was granted. Torres appealed.

DFW is a special purpose governmental entity which possesses immunity as a matter of law.  As a result, Torres must establish a waiver of immunity to proceed. The Texas Tort Claims Act expressly lists the operating and regulation of an airport to be a governmental function, so no proprietary aspects are involved. Although TEX. LOC. GOV’T CODE § 271.152 provides for a

waiver of immunity in certain cases, that waiver is not absolute.  Unfortunately for Torres, she did not contract with DFW, but with an independent contractor of DFW.  The waiver under §271.152 only applies to contracts entered into directly with DFW.  The remaining arguments asserted by Torres (UDJA, TOMA, PIA, etc.) were not raised at the trial court so cannot be raised for the first time on appeal. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Myers, Osborne, and Nowell.  Opinion by Justice Myers.

4th Court of Appeals holds City painting of curb with yellow was a discretionary function entitling City to immunity

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The City of San Antonio v. Elena Herrera, 04-18-00881-CV (San Antonio, Aug. 21, 2019) 

This is a Texas Tort Claims Act (TTCA) case where the San Antonio Court of Appeals held the painting of a ramp and curb specific non-contrasting colors was a discretionary function, entitling the City to retain immunity. 

Herrera fell in a City owned/operated parking garage allegedly due to a step from curb and ramp.  The curb of the landing, the ramp, and the flares are all painted yellow. The City’s discovery responses stated these elements of the garage have “always been painted a bright, highly visible yellow color,” and that City maintenance crews had painted it the same way once or twice a year for at least the last twelve years. Herrera asserted the coloring made the curb and ramp appear flush so she did not realize a step-down existed. The City filed a plea to the jurisdiction, which was denied. The City appealed. 

Herrera contends the unreasonably dangerous condition is the lack of visual contrast between the curb and the flares and the absence of any warning of the step down.  Herrera confirmed that her fall was not caused by a slippery substance or by a defect in the actual structure of the ramp/flares, such as a chip or crack, or that the lighting in the garage was insufficient.  Essentially, she is asserting the City failed to use contrasting colors. However, decisions about installing safety features are discretionary decisions.  Yellow paint on elements of a walkway is a common safety feature used to provide visual cues of an elevation change and the City’s use or non-use was a discretionary function for which the City maintains immunity.  The court found it significant no state regulations require any particular color scheme. Further, the City had no duty to bring forth evidence that a “conscious exercise” of discretion was made in order for the discretionary function exception to apply, only that the function is a discretionary one.  Finally, since she already replead once, she is not entitled to another opportunity.  Her claims were dismissed.

If you would like to read this opinion click here.  Panel consists of Chief Justice Marion, Justice Chapa, and Justice Rodriguez. Memorandum opinion by Justice Chapa. 

3rd Court of Appeals holds PIA appeal deadline for entity to challenge AG opinion is jurisdictional

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San Jacinto River Authority v. Ken Paxton,  03-18-00 547-CV (Austin, Aug. 22. 2019) 

This is the Public Information Act (PIA) case where the Austin Court of Appeals held an entity must file suit to appeal an AG opinion within the jurisdictional time limit. 

San Jacinto River Authority (SJRA) received PIA requests from McFarland and Fuchs for communications discussing a specific release of water. It submitted a request for both on the same day.  The AG issued an opinion on the McFarland request opining SJRA could withhold information, but SJRA did not timely submit an opinion request regarding Fuchs and the information must be released. The opinion had language SJRA asserts was an indicated to seek reconsideration. SJRA attempted to seek a reconsideration but was told, by AG letter, the PIA does not allow such. They filed suit to appeal the decision, but it was outside the time frame for appeal of the opinion. SJRA asserted the non-reconsideration letter was the proper trigger point. The AG filed a plea to the jurisdiction, which was granted. SJRA appealed. 

The court analyzed the statutory section regarding an entities ability to file suit to challenge an AG opinion. It held filing suit within the 30 day time period was jurisdictional. The non-reconsideration letter cannot reasonably be characterized as “the decision determining that the requested information must be disclosed” because it did not make any reference to disclosure of the information. It is merely a post-decision correspondence informing SJRA it was prohibited from asking for a reconsideration. The opinion also held the separate declaratory judgment claims were redundant and no jurisdiction existed for it.  SJRA asserted the AG should be estopped from using the jurisdictional arguments because it invited reconsideration, causing delay past the deadline. However, the court held estoppel cannot convey jurisdiction. Finally, regardless of SJRA’s “compelling reason” for withholding the information, the trial I court lacks jurisdiction to hear them since SJRA missed the deadline. The plea is affirmed. 

If you would like to read this opinion click here. Panel consists of Justices Goodwin, Baker, and Triana. Memorandum opinion by Justice Baker. 

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. 

Dallas Court of Appeals holds officer entered intersection in good faith – entitled to official immunity

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City of Dallas v. Rosa Rodriguez, 05-19-00045-CV, (Tex. App. – Dallas Texas, August 7, 2019)

In this Texas Tort Claims Act (“TTCA”)/motor vehicle accident/emergency responder case, the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rodriguez was injured when a Dallas police officer disregarded a red light and collided with her.  The officer driving the vehicle provided the accident investigation as well as her own affidavit, noting she was responding to an emergency call regarding a person who was breaking windows and threatening to shoot a woman in her home.

The officer stated she approached the intersection and came to a complete stop before proceeding through the intersection. The officer also stated that “all traffic on the northbound side had stopped and was giving [her] passage.” Rodriguez asserted the officer did not stop, and the PD had a policy requiring officers to come to a complete stop. It was discovered after the accident that the officer’s lights and sirens were not working properly, based on dash cam footage. The video’s GPS “speed” indication shows the officer’s speed at 23 mph just before she appears to come to a complete stop. The speed indicator quickly drops to 9 mph and then to 2  mph after after she stopped; the indicator immediately shows her speed at 3 mph as she slowly entered the intersection. The officer’s affidavit stated the potential danger posed by proceeding through the intersection was far less, considering all factors, than the danger posed to the officers and victims involved in the emergency at issue.  The City filed a plea to the jurisdiction arguing official immunity, which was denied.

The court first noted that Rodriguez’ objections to the officer’s affidavit (i.e., hearsay and best evidence) were not sufficiently specific. The court held that the “stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before” the officer started moving again. The video also indicates “triggers” including lights, siren, and brakes. The officer testified she understood that, in making discretionary decisions during emergency calls, she must weigh the need to respond urgently to the emergency call against the risk involved to the general public when responding to the emergency. She explained her thought process on the record.  The court held that the fact a collision occurred does not equate to a showing that the law was violated and is insufficient to raise a fact issue on recklessness.  An officer’s own affidavit can establish good faith, and an officer’s good faith is not rebutted by evidence that she violated department policy.  The record shows the need/risk analysis performed by the officer. Rodriguez failed to establish a fact issue as to recklessness. As a result, the plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices Bridges, Brown and Nowell. The attorneys listed for Dallas County are Bonnie Snell, Amy I. Messer, James B. Pinson, Jason G. Schuette, and Nicholas Palmer. The attorneys listed for Rosa Rodriguez are Susan B. Smith, Billy McGill Jr., and Briana Crozier.

Texas Supreme Court holds use of fluid during surgery can trigger waiver of immunity, irrespective of medical judgment

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THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER v. LANCE MCKENZIE, 17-0730 (June 28, 2019)

This is a Texas Tort Claims Act (TTCA)/tangible personal property case in which the Texas Supreme Court affirmed the denial of the district’s plea to the jurisdiction for its use of a carrier agent during surgery. 

Cortney McKenzie-True began treatment for cancer at M.D. Anderson. She went through a test trial for treatment. The visible cancer was first surgically removed. After a chemo drug was administered, the body was washed out with a carrier agent. The hospital used D5W. Use of the carrier agent had an adverse effect on McKenzie-True, which was a known risk but was considered to have a small probability of occurring. McKenzie-True died, and the (McKenzie) family sued. The hospital filed a plea to the jurisdiction asserting the carrier agent was properly administered, so no negligent use of the drug had occurred. The lower courts denied the plea, and the hospital appealed. 

The hospital asserts the  McKenzies’ actual claims complain of negligent use of medical judgment, not negligent use of the carrier agent.  The McKenzies asserted it was the agent that caused the death, and the hospital should have known it was the incorrect fluid to use. This case blurs the fine line between medical judgment and the negligent implementation of that judgment. The Court held that “[w]hile we agree that a complaint about medical judgment, without more, is insufficient to waive immunity, the negligence alleged here does not involve only medical judgment.”  The issue becomes whether the injury is caused by improper medical judgment in which tangible property is used or whether the use, itself, of the property caused the injury, and the fact the property was administered properly is irrelevant. The Plaintiffs alleged D5W never should have been used, due to the high levels needed for the test trial procedure. The fact that the use was preceded by medical judgment is of no consequence, since all aspects of surgery are preceded by medical judgment. From a pleading standpoint, this is sufficient to establish jurisdiction and a potential waiver.  

Additionally, the Court held this was the analysis of immunity from suit, not immunity from liability.  Essentially, the Court held the plea allegations are based not only on medical judgment, but on a direct causal connection of the use of personal property. 

The dissent asserts that a separation of the decision (medical judgment) from the use of property is important. The majority’s interpretation eliminates sovereign immunity regarding medical judgment. Noting, “If sugar water [D5W] should not have been used, neither should a scalpel have been, or the surgical apparatus, or for that matter, the building.” The dissent asserted the medical judgment should not be disregarded and that if it was based on medical judgment, there is no waiver. 

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