P&Z members immune from ultra vires actions from third parties in plat approval/denial proceedings

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Josh Schroeder, et al. V Escalera Ranch Owners’ Association, Inc., No. 20-0855 (Tex. June 3, 2022)

In this case, the Texas Supreme Court held individuals on the planning and zoning commission were entitled to immunity from ultra vires claims brought by third parties challenging a plat approval. 

Escalera Ranch is a subdivision within the City of Georgetown’s extraterritorial jurisdiction. A developer applied for a preliminary plat. The subdivision’s home owners association (Association)  opposed the application. They asserted that the plat did not conform to the City’s Unified Development Code (UDC) or adopted fire code. They claimed that under the UDC, streets like Escalera Parkway are expected to carry no more than 800 vehicles per day and serve a maximum of 80 dwelling units.  After analysis, Commission staff reported that “[t]he proposed Preliminary Plat meets all of the requirements of the [UDC]…” and the fire marshal asserted it would meet the fire code. The Commission approved the plat, asserting it had a ministerial duty to approve the plat. The Association sued for mandamus asserting the act was ultra vires and to resend the plat. The Commission filed a plea to the jurisdiction which was granted at the trial court. The court of appeals reversed asserting a fact question existed and the Commission individuals appealed. 

“[P]lat approval is a discretionary function that only a governmental unit can perform.” But once the relevant governmental unit determines that a plat conforms to applicable regulations, it has a ministerial duty to approve that plat. The Commission made such a determination in this case.  Mandamus seeking to compel action by a public official “falls within the ultra vires rationale.”  The Local Government Code does not create a ministerial duty to deny a nonconforming plat. To the contrary, recordable plats that are not acted upon within 30 days must be approved, even without a determination of conformity. The Commission exercises discretion in determining ordinance conformity. So, the Court analyzed the assertion under an abuse of discretion standard.  The Commission’s conformity determination is a discretionary one that necessarily involves “interpret[ing] and constru[ing] . . . applicable ordinances”. While the UDC limits the discretion of what the Commission may consider, it does not otherwise restrict the Commission’s exercise of its discretion to determine conformity.  The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one. If a municipal planning and zoning commission wants to deny a plat for nonconformance, it has only thirty days to do so. After that, the plat is generally approved—even if nonconforming.  The Legislature has not created a mechanism for third parties to seek judicial review of a municipality’s platting approval.  As a result, the individual members are immune from any ultra vires claim brought by the Association. 

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

Texas Supreme Court holds the law requires more than conclusory references to the statute’s elements in order to waive immunity

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Patrick Von Dohlen, et. al., v City of San Antonio, 20-0725 (Tex. April 1, 2022)

This is a declaratory judgment – statutory cause of action case brought against the City of San Antonio (“City”) for violating Chapter 2400 of the Texas Government Code. The Texas Supreme Court held the Plaintiffs failed to allege a proper waiver under the statute but remanded for an ability to cure the defect.

The city council for the City of San Antonio declined to allow Chick-fil-A to operate a concession area within the City’s airport. The Plaintiffs alleged the action was taken due to councilmember comments opposing the religious views of the company. Specifically, the company has a legacy of anti-LGBTQ behavior. Later, the Legislature passed TEX. GOV’T CODE § 2400.002, which prohibits a city from taking “any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.”  Four years later, the Plaintiffs sued the City and asserted it was in violation of this statutory provision. The City challenged jurisdiction asserting the law is not retroactive, and lack of standing due to no distinct injury from the general public. The trial court denied the plea, but the court of appeals reversed and dismissed the claims. Plaintiffs appealed.

When a statute waives immunity, a plaintiff must still plead an actual violation and mere references to the statute are insufficient. Chapter 2400 explicitly waives sovereign and governmental immunity when a person “alleges” a violation of Section 2400.002.  However, the petition’s alleged facts all occurred prior to the enactment of Chapter 2400 and nothing afterward. While the Plaintiffs allege the City’s violation is continuing in nature, they do not allege any facts to support this. Here, Plaintiffs do not plead sufficient facts to “actually allege a violation” of Chapter 2400 because they fail to point to any specific “action” the City took on or after Chapter 2400 was effective. However, this does not mean the City has negated the ability to plead such a claim. Texas law does not favor striking defective pleadings without providing plaintiffs an opportunity to replead.  As a result, the case is remanded to allow the ability to replead.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, Justice Bland, and Justice Young joined. JUSTICE BLACKLOCK filed an opinion concurring in the judgment, in which Justice Devine joined and is found here

13th Court of Appeals grants mandamus relief to TxDOT – allowed TxDOT to withhold from discovery skid mark and other highway safety statistics

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In re Texas Department of Transportation, 13-21-00214-CV  (Tex. App. – Corpus Christi, Dec. 9, 2021)

In this mandamus action, the 13th Court of Appeals conditionally granted the writ, noting federal law made certain information regarding highway safety data privileged and exempt from discovery.

The Simpson plaintiffs filed suit against TxDOT for survival and wrongful death damages arising from a motorcycle accident that occurred on State Highway 361 causing the death of one individual. The decedent was driving a motorcycle when a Ford F-150 truck veered into the decedent’s lane of travel. When the decedent attempted to avoid the collision and applied his brakes his back tire locked up and he was killed. The Simpson familied sued TxDOT (and others). The Simpsons alleged the roadway was dangerous and subject to “polishing” which a special roadway defect caused by years of travel and increased traffic that results in a decrease in the coefficient road friction.  The Simpsons alleged that TxDOT knew about the defect and was aware of multiple deaths on that stretch of the highway resulting from the defect. The Simpsons sought, through discovery, to compel TxDOT to produce Pavement Management Information System (PMIS) data, including skid testing data.  TxDOT sought a protective order and the Simpsons filed a motion to compel.  The trial court granted the Simpsons’ motion to compel and ordered TxDOT to produce the data. TxDOT initiated this original proceeding.

Since TxDOT is asserting the privilege, it had the burden to establish the privilege. TxDOT asserted 23 U.S.C. § 409 is a federal statute which protects traffic-hazard data that is compiled or collected by the state pursuant to federal highway safety programs from being the subject of discovery or being used as evidence in federal and state court proceedings. This includes the Highway Safety Improvement Program in § 148. See 23 U.S.C. §§ 130, 144, 148. Congress established several federal programs to assist the States in identifying and evaluating roads and highways in need of safety improvements and to provide funding for those projects. The United States Supreme Court concluded that this section “protects not just the information an agency generates” or compiles for the stated purposes, but “also any information that an agency collects from other sources” for those purposes. However, it does not apply to information collected for a different purpose. The Simpsons asserted the information that they requested was used as part of routine maintenance, and thus, the statutory privilege does not apply. However, TxDOT operates the PMIS program through its Maintenance Division, which keeps detailed statistics used for the program.  As a result, it was an abuse of discretion for the trial court to order the release of the information.

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

First Court of Appeals holds 380 development agreement was an agreement for goods and services (waiving immunity) but dismissed all other claims brought against the City by the developer

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Town Park Center, LLC v. City of Sealy, Texas, Janice Whitehead, Mayor, Lloyd Merrell, City Manager and Warren Escovy, Assistant City Manager, 01-19-00768-CV, (Tex. App – Hou [1st], Oct. 28, 2021)

In this contract dispute, the First Court of Appeals in Houston affirmed in part and reversed in part the City’s plea to the jurisdiction. This is the third lawsuit involving the parties and underlying dispute.

Town Park Center and the City executed a “380” Economic Development Agreement (“the EDA”) to develop a commercial shopping center on Town Park’s property. Town Park Center agreed to develop and construct the shopping center according to a development plan that the City had approved. The City agreed to pay annual economic development grant payments (based on sales tax collections) to Town Park Center “as an incentive to comply with this Agreement.” Town Park Center first filed suit against the City and officials, asserting breach of contract and other claims. The basis was an assertion the EDA required the City to sell stormwater detention capacity to Town Park and failed. The City filed a plea to the jurisdiction, which was granted as to the city but not the individual officials. The officials appealed but Town Park non-suited. Town Park then filed a second suit against other officials, but which was otherwise identical.  Town Park later non-suited, only to file a third suit seeking mandamus, declaratory, injunctive relief, takings, ultra vires claims and claims under the “vested rights provision” of Local Government Code chapter 245. The factual allegations were nearly identical to the first and second suit. The City filed a plea to the jurisdiction and argued immunity as well as res judicata “ish” arguments. The trial court granted the plea and Town Park Center appealed.

The court noted that res judicata is an affirmative defense and could not be raised in a plea to the jurisdiction. It declined to consider the arguments through the lens of a summary judgment noting the trial court consideration lacked the hallmarks of a true summary judgment proceeding, including the required 21 days’ notice of a hearing date. However, the City also raised immunity defenses. The court held the EDA constituted a contract for goods or services which can trigger a waiver of immunity. The EDA included a provision for Town Park Central to build and dedicate a road to the City as part of the development, which therefore constitutes a service.  The trial court therefore erred in granting the plea as to the breach of contract claim. However, as to the Chapter 245 vested rights claim, Town Park Center did not identify any City order, regulation, ordinance, rule, or other requirement in effect when its rights in the project vested that mandates the sale of the capacity at issue. With no change in order or rule, Chapter 245 is inapplicable. As to Town Park’s takings claim, it failed to establish the City’s refusal to allow the purchase of detention capacity deprived them of the beneficial use of the property. Specifically, the court noted Town Park Center finished the development and sold it to host a grocery store. The City, therefore, did not deprive it of all economic use of the property. As to the ultra vires claims, the court first chastised the parties for failing to follow proper pleadings rules, making the determination more difficult on the court, specifically by labeling various amended pleadings as supplemental pleadings. Considering the pleadings as filed, the court held the City officials ended up joining the City’s plea as part of a supplement (without objection from the other side). Merely failing to comply with a contract does not give rise to an ultra vires claim.  While Town Park Central points to a city resolution allowing for detention capacity purchases, it does not mandate the sale of detention capacity. It instead only provides that the City may sell detention capacity, which is discretionary. As a result, the ultra vires claims were properly dismissed.

In short, the court reversed the dismissal of the breach of contract claim, ultimately affirmed the dismissal of all other claims, and remanded for trial.

Panel consists of Justices Kelly, Guerra, and Farris. Opinion by Justice Farris can be read here. Docket page with attorney information found here.

Eastland Court of Appeals holds City failed to obtain ruling on special exceptions, therefore it could not complain about a lack of factual specificity in the pleadings within its plea to the jurisdiction

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City of Odessa, Texas v. AIM Media Texas, LLC d/b/a The Odessa American, 11-20-00229-CV  (Tex. App. – Eastland, May 13, 2021).

This is a Public Information Act (“PIA”) case where the Eastland Court of Appeals held the Plaintiff had properly fallen under the jurisdiction of the PIA.

AIM Media, a newspaper company, sued the City for mandamus under the PIA asserting the City failed to timely provide the information requested and improperly redacted information. The City asserted it provided all information and that AIM Media plead conclusory allegations only, with no facts. The City asserts it filed special exceptions to the bare pleadings then filed a plea to the jurisdiction, which was denied. The City appealed.

The court noted the City challenged the pleadings only, so the pleadings were taken as true for purposes of the plea. The PIA allows a requestor to sue for mandamus.  While the court appeared to acknowledge that a lack of factual allegations can be grounds for a plea, the court held the City failed to obtain a ruling on their special exceptions. As a result, whether the special exceptions properly put AIM Media on notice of any jurisdictional defects was not before the court. Taking the pleadings as true, the court held AIM Media pled the minimum jurisdictional requirements.  The plea was therefore properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Trotter and Justice Williams. Opinion by Chief Justice Bailey.

Texas Supreme Court holds ordinance initiative ballot language is misleading because it did not account for exceptions

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In Re: Linda Durnin, et. al, 21-0170 (Tex. March 2, 2021)

This is an original proceeding mandamus action where the Texas Supreme Court held petitioners were entitled to mandamus to make sure the City Council’s ballot language properly complied with the intent of the citizen-initiated petition to adopt an ordinance.

Petitioners brought an initiative petition requiring the City Council place on the ballot for the May 2021 election an ordinance regarding camping in public places (including sidewalks) and aggressive solicitation for money. The City Council called the election for the initiative.  When the Council approved the ballot language, it stated the ordinance creates a criminal offense and penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors.  Petitioners sued for mandamus asserting, among other things, that the ballot language inaccurately reflects the ordinance to be voted upon.

The Texas Supreme Court held the wording of the proposed ordinance does not apply to just anyone. The ordinance contains certain exceptions for common uses of the sidewalk. Thus, only a subset of those who engage in the covered behavior—not just anyone—can be penalized under the ordinance. In this regard, the word “anyone” in the Council’s ballot language threatens to “mislead the voters” by misrepresenting the measure’s character and purpose or its chief features. The court issued mandamus to strike the word “anyone” for two locations in the ballot. However, the Court disagreed with the Petitioners noting that they did not meet the burden necessary for an emergency mandamus action to hold the City Council lacked the ability to select the language. The proposition correctly states that the ordinance creates criminal offenses and penalties. The Court held “Relators would prefer that this aspect of the ordinance appear less prominently in the proposition, but it is not [the court’s] job to micromanage the sentence structure of ballot propositions. [It’s] job is to ensure voters are not misled…”  The only defect the Court believed needed adjusting was the word “anyone” as it does not account for exceptions.

The dissent agreed the language was misleading, but would not have reached that issue. It believed the Petitioners clearly established the charter prevents the City Council from deciding the ballot language.  Instead, the City should be required to cite the caption language contained in the proposed ordinance.

If you would like to read this opinion click here. Justice Blacklock delivered the opinion of the court. Justice Boyd dissented (found here)  and was joined by Justice Devine and Justice Busby.

13th Court of Appeals holds remainder of employment contract was consequential damages, not amounts due and owed, therefore no waiver of immunity exists for breach

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Edinburg Housing Authority, Dr. Martin Castillo, Gabriel Salinas, Simon Garza, Marissa Chavana, and Juan Guzman v. Rodolfo Ramirez, 13-19-00269-CV, (Tex. App – Corpus Christi Feb. 25, 2021)

This is an interlocutory appeal from the denial of a housing authority’s motion to dismiss on jurisdictional grounds in an employment dispute. The Corpus Christi Court of Appeals reversed the denial and dismissed the case.

Ramirez signed a three-year employment contract with the Housing Authority to be its Executive Director and was extended for another three years, to end in 2021. However, in 2018 the board of the housing authority terminated Ramirez. Ramirez sued the Authority as well as individual commissioners (hereinafter “Authority Defendants”) for breach of contract, as well as constitutional due course of law, equal protection, and declaratory judgment relief. The Authority Defendants filed a motion to dismiss under Rule 91a citing a lack of jurisdiction. The trial court denied the motion and the Authority Defendants appealed.

The court first decided that, contrary to the individual commissioner’s assertion, the court did have interlocutory jurisdiction to hear the appeal involving them individually as well as in their official capacities. Section 51.014(a)(5) of the Texas Civil Practice & Remedies Code allows interlocutory appeal for the denial of a motion for summary judgment based on an individual’s immunity.  While the underlying motion was a motion to dismiss as opposed to an MSJ, the court determined they are treated the same for purposes of §51.014(a)(5). Next, suits brought pursuant to a Texas constitutional provision are limited to equitable relief and do not allow a claim for monetary damage.  This applies to the entity as well as individual employees and officials. Ramirez’s constitutional claims should have been dismissed because they sought only the recovery of monetary damages. Next, to trigger the waiver of immunity for contract claims under Tex. Loc. Gov’t Code § 271.152, a plaintiff must claim damages within the limitations of the chapter, i.e. balances due and owed, but not paid. Consequential damages are specifically excluded. Ramirez does not claim that the Housing Authority and its Commissioners failed to pay him for work he completed as the Housing Authority’s Executive Director. Rather, Ramirez seeks recovery of the wages he would have earned had his employment contract continued through the end of its extended term. These future wages would be considered “lost profits,” which are “consequential damages excluded from recovery.”  As a result, no jurisdiction exists as to the contract claim. The court then determined Ramirez’s constitutional claims against the commissioners, individually, cannot be brought against them as private actors. Because the individual commissioners are not the State or an entity thereof, these claims cannot stand. Further, Ramirez signed a contract with the Authority, not the individual commissioners. As a result, the commissioners cannot be individually sued for breach of contract. Finally, Ramirez had the opportunity to amend and failed to correct any defects. As a result, he is not entitled to amend.  Finally, the court determined the Authority Defendants were entitled to attorney’s fees and remanded to the trial court for such a determination.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, and Justices Hinojosa and Silva. Reversed and remanded. Opinion by Justice Hinojosa. Docket page with attorney information found here.

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

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

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

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

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

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

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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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

Dallas Court of Appeals holds comprehensive plan ordinance is subject to referendum petition

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Carruth, et al v Henderson, 05-19-01195-CV (Tex. App. – Dallas, July 22, 2020).

This is a mandamus action (and second interlocutory opinion) where the Dallas Court of Appeals issued a mandamus against the City Secretary of the City of Plano regarding a citizen’s referendum petition and granted summary judgment for the plaintiff citizens.

The City of Plano, a home-rule municipality, has a comprehensive plan for land and use development under Chapter 213 of the Texas Local Government Code. The City of Plano’s charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. After the City passed an ordinance amending and adopting a new comprehensive plan, several citizens submitted a petition to the City Secretary for a referendum to repeal the new plan. The City Council held an executive session and was advised by outside legal counsel that the petition was not subject to a referendum vote. When no action was taken on the petition, the citizens filed suit to compel formal submission to the City Council and to have the City Council either take action or submit to a popular vote. The City Secretary filed a motion for summary judgment, which was granted. The citizens appealed.

The legislature may preempt municipal charters and ordinances. However, when preempting a home-rule charter, the language must be clear and compelling. The Plano City Charter itself excepts only ordinances and resolutions levying taxes from the referendum process. And while Chapter 213 of the Texas Local Government Code regulates the adoption of comprehensive plans, the mere fact that the legislature has enacted a law addressing comprehensive plans does not mean the subject matter is completely preempted (which would have foreclosed a referendum application). The City Secretary claims § 213.003 impliedly withdraws comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission before cities can act on such plans. This argument ignores that the statute also allows a municipality to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. Tex. Loc. Gov’t Code § 213.003(b). Thus, the legislature did not limit the power of home-rule municipalities to adopt comprehensive plans. Further, comprehensive plans, while linked, are to be treated differently than zoning regulations. So, the cases cited by the City Secretary related to zoning referendums are not applicable. The order granting the City Secretary’s motion for summary judgment is reversed.  Because the original interlocutory opinion (summary found here) held the City Secretary has a ministerial duty to present the petition to the City Council, the law-of-the-case doctrine prevents the panel from holding otherwise. As a result, it must grant the citizen’s motion for summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Schenck, Molberg, and Nowell. Opinion by Justice Schenck.  Docket page with attorney information found here.

Texas Supreme Court holds a lack of immunity for coronavirus is not a “disability” for purposes of mail-in election ballots

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In re State of Texas, 20-0394 (Tex. May 27, 2020)

This is a mail-in ballot case. The great folks at the Texas Municipal League already summarized this case, and I try not to duplicate any summaries they beat me to. Their summary is found here and was issued May 28, 2020.

However, since not everyone may have seen the summary and it affects multiple entities, I’ve included this condensed version.

Essentially, the Texas Attorney General filed the lawsuit directly with the Supreme Court, seeking to prevent clerks and other election officials from allowing mail-in ballots for those fearful of contracting the virus responsible for COVID-19. Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances, one being the voter is disabled by statutory definition. The Court emphasized that it takes no side in what is the best policy, as that is for the Legislature. Its job is to interpret the language of the Election Code. Based on the language provided, the Court held  “…a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face.”  As a result, it declined to issue a mandamus against any officials, noting the Court was confident they would comply with the law in good faith, now that the Court has clarified the statutory language.

If you would like to read this opinion, click here. Chief Justice Hecht delivered the opinion of the court. Justices Guzman, Boyd and Bland delivered separate concurring opinions.

PIA case remanded because mayor and city secretary did not do a search of personal emails or phones for public business

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James E. Horton v. Ron Welch, Individually and Ron Welch, as Mayor of the City of Caney City, Texas, 12-19-00381-CV, (Tex. App – Tyler, April 8, 2020)

This is a Public Information Act (“PIA”) case where the Tyler Court of Appeals overruled an order granting the City and mayor’s summary judgment. [Comment: this case was filed prior to the recent PIA statutory changes creating temporary custodians.]

Horton sent two separate requests for numerous records to the City and Mayor Welch (seeking txts, emails, etc.). After Horton paid the required fees, the City, through Welch, gave him what it claims is all the requested records. Horton filed a suit asserting that Welch (as custodian) did not fully comply with his request and asking the trial court to issue a writ of mandamus. Welch filed a no-evidence motion for summary judgment arguing that he provided Horton with all requested records and documents and Horton has no evidence to the contrary. Welch also filed a traditional motion for summary judgment.  The trial court granted Welch’s motions and Horton appealed.

The PIA provides a statutory remedy of mandamus to a requestor when the governmental body refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure. The traditional MSJ was accompanied by an affidavit the city secretary performed a “painstaking investigation” and review of the City’s files and produced all responsive records. The City asserts it is not in possession of any additional records. However, the testimony established the city secretary and mayor did not examine personal accounts upon which council members could have utilized. Under the PIA “is not dependent on whether the requested records are in the possession of an individual or whether a governmental body has a particular policy or procedure that establishes a governmental body’s access to the information.” The PIA provides no guidance regarding the efforts a governmental body must take to locate, secure, or make available the public information requested. However, since the testimony established the mayor and city secretary did not look in private accounts which could have contained such information, a fact issue exists regarding whether or not all responsive information was provided.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Reversed and Remanded. Memorandum Opinion by Justice Hoyle. Docket page with attorney information can be found here.

 

Texas Supreme Court holds no-evidence MSJ proper to challenge jurisdiction; TOMA waiver of immunity does not include declaratory judgment claims

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Town of Shady Shores v Swanson, 18-0413 (Tex. Dec. 13, 2019)

This is an employment case, but the focus on the opinion is a procedural one.  Importantly, the Texas Supreme Court held 1) a no-evidence motion for summary judgment was proper to raise a jurisdictional challenge and 2) the Texas Open Meetings Act (TOMA) did not waive immunity for declaratory relief, only mandamus and injunctive relief.

Swanson was the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction which was granted as to the Sabine Pilot and Whistleblower claims. The  Town later filed traditional and no-evidence summary judgment motions (on immunity grounds) as to the Texas Open Meetings Act declaratory judgment claims, which the trial court denied.  The Town took an interlocutory appeal, but Swanson kept filing motions. The trial court granted Swanson leave to file a motion for a permissive interlocutory appeal as Swanson asserted she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the Town’s notice of appeal for the summary judgments. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal the Town filed a separate mandamus action (which was consolidated for purposes of appeal). The court of appeals declined to issue the mandamus noting the trial court did not actually sign any orders and noted Swanson did not timely file an appeal and was not granted a permissive appeal. Court of appeals summary found here.

The court of appeals held allowing a jurisdictional challenge on immunity grounds via a no-evidence motion would improperly shift a plaintiff’s initial burden by requiring a plaintiff to “marshal evidence showing jurisdiction” before the governmental entity has produced evidence negating it.  It also held the entity must negate the existence of jurisdictional facts. After recognizing a split in the appellate courts, the Texas Supreme Court rejected the reasoning noting in both traditional and no-evidence motions, the court views the evidence in the light most favorable to the nonmovant.  Because the plaintiff must establish jurisdiction, the court could “see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.”  Thus, when a challenge to jurisdiction that implicates the merits is properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff will be required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact.  Such a challenge is proper using a no-evidence summary judgment motion.  Next, the Court held  the UDJA does not contain a general waiver of immunity, providing only a limited waiver for challenges to the validity of an ordinance or statute.  UDJA claims requesting other types of declaratory relief are barred absent a legislative waiver of immunity with respect to the underlying action. Under  TOMA, immunity is waived only “to the express relief provided” therein—injunctive and mandamus relief—and the scope does not extend to the declaratory relief sought. Thus, TOMA’s clear and unambiguous waiver of immunity does not extend to suits for declaratory relief against the entity. However, Swanson did seek mandamus and injunctive relief as well, which were not addressed by the court of appeals, even though argued by the Town. As a result, such claims are remanded to the court of appeals to address.

If you would like to read this opinion click here. Justice Lehrmann delivered the opinion of the Court. The docket page with attorney information is found here.

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.

Texas Supreme Court holds attorney-client privilege applies even when client acts as its own expert

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In Re: City of Dickinson, 17-0020 (Tex. February 15, 2019)

This is a mandamus action of primary interest to litigators where the Texas Supreme Court held the attorney/client privilege protects expert testimony when the client is also the expert.

The City of Dickinson purchased a commercial windstorm policy from Texas Windstorm Insurance Association. In the underlying litigation, the City alleges that Texas Windstorm has not paid all it owes under the policy and sued. In the motion for summary judgment Texas Windstorm included the affidavit of its corporate representative and senior claims examiner, Paul Strickland. Strickland’s affidavit provided both factual and expert opinion testimony on Texas Windstorm’s behalf. Strickland’s affidavit had been revised in a series of emails between Strickland and Texas Windstorm’s counsel and the City sought the drafts in discovery. Texas Windstorm asserted the communications were privileged while the City asserted, as a testifying expert, the communications were not privileged. The trial court ordered Windstorm to produce the communications. The court of appeals conditionally granted a writ of mandamus. The Texas Supreme Court heard the mandamus filed by the City.

Texas Windstorm responds that the expert-disclosure rules do not override the attorney–client privilege and do not require a party to choose between defending itself and maintaining its privileges. It asserted the attorney–client privilege is substantively distinct from the work-product doctrine.  There was no dispute the communications at issue were encompassed within the attorney/client privilege.  The Court declined to create any new privileges in the opinion and confined its analysis to the rules of discovery already in place. Because the discovery rules are part of a cohesive whole, the Court considered them in context rather than as isolated provisions.  While Texas Rule of Civil Procedure 192.3 states a party may discover expert information, it does not expressly permit discovery when the information is protected by the attorney/client privilege. In fact, Rule 192.3(a) expressly contains the phrase “absent some specific provision otherwise” which the Court interpreted to include the attorney/client privilege.  Further, Rule 194.2 permits a party to seek a disclosure on expert information, but such is permissive, not mandatory and is subject to privileged communications. Additionally, the official comments to Rule 194 explain that a responding party may assert any privilege to a Rule 194.2 request except work product. The City’s supporting cases were largely based in the work-product privilege, not the attorney/client privilege. As a result, they are inapplicable. The Court reemphasized some of its more recent opinions holding the attorney/client privilege is a “quintessentially imperative” to our legal system. A lawyer’s candid advice and counseling is no less important when a client also testifies as an expert. As a result, it upheld the mandamus and allowed Texas Windstorm to withhold the communications.

If you would like to read this opinion click here. Justice Devine delivered the opinion of the Court. The docket page with attorney information is found here.