City’s denial of plat application citing inconsistencies with “general plan” of city, without more, is insufficient and therefore vested rights are implicated


The Village of Tiki Island, et al.  v. Premier Tierra Holdings Inc., 14-18-00014-CV (Tex. App. – Houston [14th Dist.], July 10, 2018)

This is an interlocutory appeal in a land-use case were the 14th Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

This case has gone up and down the appellate ladder already.  Prior summary found here. Premier sought to develop property for a mixed-use marina project. Premier submitted a plat application which included up to one hundred residential units and up to 250 dry stack enclosed boat slips. The City had no meaningful land-use regulations or platting or subdivision regulations. Five days later the city enacted a zoning ordinance prohibiting dry boat storage, limiting heights and set-backs, and restricting rental dates and parking. The City then rejected the plat application as being inconsistent with the new ordinance. Premier next sought a rezoning application as a planned unit district, which was denied.  It also sought several plat amendments which were denied. Premier filed a mandamus and sought declaratory relief asking the court to approve the original plat application and successive plat applications based on vested rights under chapter 245 of the Texas Local Government Code. It further brought a takings claim. The City Defendants filed a plea to the jurisdiction which was denied. The City Defendants appealed.

Chapter 245 creates a system by which property developers can rely on a municipality’s regulations in effect at the time the original application for a permit is filed. It freezes” the rules at the time the original application for a permit is filed, and limits the rights of a city to “change the rules in the middle of the game.” Chapter 212 of the Texas Local Government Code deals with plat approval and requires plats to conform to the “general plan” of the city and for extensions of utilities and roadways. The City’s assertion that it relied on a pre-existing “general plan” of the City in denying the original plat application was rejected as the City did not provide, in the record, evidence of such a plan or what its framework would have been. Chapter 212 plans must be adopted after public hearings, which is not evident in the record. A vague reference to a general plan of the city is insufficient for plea purposes and a fact question exists preventing the plea. Further, Chapter 245 expressly authorized a declaratory judgment suit to establish Chapter 245 rights. As to the takings claim, the court held Premier alleged facts to support a takings claim based on the denial of its vested rights in the project.

If you would like to read this legal opinion, click here. Justice Christopher, Justice Donovan and Justice Wise. Opinion by Justice Wise.

City of Houston can be sued by pension board for non-compliance with statutory pension provision and PIA


City of Houston, et. al.  v. Houston municipal employees pension system, 17-0242, — S.W. 3d — (Tex. June 8, 2018).

City of Houston created several local government corporations to which it transferred some of its employees. Specifically at issue is the adoption of resolutions by the Houston Municipal Employees Pension System’s Board of Trustees (the board) related to those employees, their status, and the City’s obligation to contribute to the pension fund. Under the state statute applicable to Houston’s board, the board has authority to interpret the statute and such interpretation is considered final.  The system interpreted the term “employee” subject to the pension fund to include employees of several local government corporations, especially those where the corporation is controlled by City appointees and funded by the City (such as the pension system employees).  The City refused to fund those individuals and the system sued under an ultra virestheory. It also sued for failure to provide information under the Texas Public Information Act (TPIA).

The Court first held that the statute states the pension system can file suit on behalf of the board, therefore the system has standing. The Court agreed with the City that the system was trying to use an ultra viresclaim to enforce a contract where the end result is the payment of funds.  However, the contract in this case was simply the mechanism used for the City to comply with the requirements of the statute. The City must still follow the statutory requirements for funding the pension plan, so the system can bring an ultra viresclaim to compel compliance with the statute. However, the Court interpreted the pleadings to read the system seeking prospective relief only. Strangely enough, the Court held that the identity of the party is not relevant to the jurisdictional situation in the PIA portion of this case (city v Public Information Officer) as a mandamus is proper against the entity under the PIA.  However, the PIA is not applicable to the other defendants who are not the PIO or the City.   It also held that where the City has a right of access to the information (that of the other corporations), the information is subject to the PIA. Therefore jurisdiction is proper for the system’s claims.

If you would like to read this opinion, click here.Justice Johnson PER CURIAM.


Texas Supreme Court holds county commissioner has no authority over plats, so is an improper party to suit by developer


W.A “Andy” Meyers, individually and in his capacity as Fort Bend County Commissioner v. JDC/Firethorne, LTD., a Texas limited partnership; from Fort Bend County; 14th Court of Appeals District (14-15-00860-cv, 514 sw3d 279, 12-22-16)

In this land development suit, the Texas Supreme Court held because an individual county commissioner lacks legal authority to receive, process, or present a completed plat application the developer failed to shown a substantial likelihood that the injunction will remedy its alleged injury and therefore no jurisdiction exists.

Firethorne had a subdivision within Commissioner Meyer’s precinct. The County’s plat application and approval process for proposed subdivisions is governed by chapter 232 of the Texas Local Government Code and the Fort Bend County Regulations of Subdivisions. The County’s regulations designated its county engineer as the official charged with receiving and processing plat applications. Firethorne contends certain plan applications were placed on “hold” in an effort to “extract a concession” that Firethorne that it must construct four lanes of West Firethorne Road, a road within the Firethorne development. Firethorne did not wish to construct the lanes. Firethorne filed this lawsuit seeking mandamus relief requiring Stolleis to “submit the completed plat application” and that failing to do so is an ultra vires act. Firethorne presented emails showing the engineer was holding the application based on Meyer’s instructions. Firethorne sought an injunction to prevent the County from interfering with Firethorne’s construction. Meyers filed a plea to the jurisdiction which was denied. The trial court found Meyer injected himself into the process and therefore was an essential part and subject to suit. The court of appeals affirmed.

The Texas Supreme Court held Meyer’s arguments are actually challenges to Firethorne’s standing, which Firethorne disguised as an ultra vires claim. Under a standing analysis, the claims asserted must satisfy the redressability requirement of the Texas Constitution. The County’s Regulations of Subdivisions designate the county engineer as the sole county official responsible for receiving all documentation and information that must be submitted with the plat application. A sole commissioner has no authority to receive, process, or present a plat to the collective body. Meyer also has no obligation or duty to do so. A sole commissioner also has no authority to fire the engineer. When a plaintiff seeks an injunction which cannot possibly remedy their situation, the plaintiff has failed to establish standing. Meyer filed the plea, but Firethorne also sought relief from the engineer and the rest of the commissioner’s court which are not part of the appeal. If Firethorne received relief from the other defendants no relief from Meyer is possible. If Firethorne does not receive releif from the other defendants, relief as to Meyer would not remedy its situation. The argument that Meyer has some influence over the engineer is a “political reality” but is not a basis for suit. As a result, as to Meyer, no standing exists to sue him in his official capacity.

If you would like to read this opinion, click here. Justice Green PER CURIAM.

Administrative records of county court at law not subject to PIA says Houston’s First District Court of Appeals


Enrique Ramirez v. Ed Wells, Court Manager, 01-17-00262-CV (Tex. App. – Houston [1st Dist.], March 27, 2018)

This is a Texas Public Information Act (“PIA”) suit where the 1st District Court of Appeals in Houston affirmed the trial court judgment in favor of the court administration defendants.

Ramirez was removed from the eligibility list to receive criminal court appointments in the Harris County Criminal Courts at Law, after having been on the list for some time. Ramirez filed a PIA to see all records related to his removal. The Court Manager informed him the judiciary is exempt from the PIA and the rules of judicial administration protects release of internal deliberations of the court. The question under Rule 12 is whether the documents are court administrative files vs judicial records. Ramirez appealed to the Office of Court Administration (“OCA”), arguing that the decision to remove him from the list was an administrative decision and thus the information he requested did not constitute judicial records. The OCA agreed they were administrative, but determined it only had authority over judicial records so could not grant Ramirez any relief. Ramirez filed a petition for writ of mandamus under PIA to compel release of the records. After opposing summary judgments, the trial court granted the Defendant’s MSJ and denied Ramirez’ MSJ. Ramirez appealed.

Under the PIA, the judiciary is specifically excluded in the PIA’s definition of “governmental body.”  Access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules. The record demonstrated that regardless of whether the records were “judicial” or “administrative” they qualify as “information produced, maintained, or assembled by the judiciary.”  Access is therefore not governed by the PIA. Since Ramirez’ petition only seeks mandamus under the PIA, the trial court properly denied his summary judgment.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Massengale and Justice Brown. Memorandum Opinion by Chief Justice Radack.  The attorney listed for Ramirez is Timothy A. Hootman.  The attorney listed for the Defendants is Stephen A. Smith.

Texarkana Court of Appeals holds county court at law has jurisdiction to hear PIA mandamus against city, despite district court language in PIA


Kenneth Craig Miller v. Gregg County, 06-17-00091-CV (Tex. App. – Texarkana, March 20, 2018).

This is a Public Information Act (“PIA”) lawsuit in which the Texarkana Court of Appeals flipped back and forth between sections of the Government Code before modifying the trial court’s order regarding release of certain records held by Gregg County (“County”).

Miller sought a PIA request to allegedly “expose the depth and degree of the intimate relationships”  between City of East Mountain Police and Deputies of the Gregg County Sheriff’s Office. Miller filed a suit under the PIA seeking a writ of mandamus in County Court at Law #2 to compel Gregg County to disclose certain police phone log information.  The County filed a plea to the jurisdiction, which was granted.  Miller appealed.

The PIA states “A suit filed by a requestor under this section must be filed in a district court for the county in which the main offices of the governmental body are located.” TEX. GOV’T CODE ANN. § 552.321(b) (West 2012).  “District courts are always the courts of exclusive original jurisdiction for mandamus proceedings unless the constitution or a law confers such jurisdiction on another tribunal.” Miller asserts §25.0003(a) of the Texas Government Code states “In addition to other jurisdiction provided by law, a statutory county court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court has concurrent jurisdiction with the district court in: (1) civil cases in which the matter in controversy exceeds $500 but does not exceed $200,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition…” However, the Texas Legislature expressly amended the PIA in 1999 and added the requirement a suit be brought in district court. The Court of Appeals held this created a “condition precedent” to bringing a PIA mandamus action under Government Code §311.016(3). The Court of Appeals stated the question for it, then becomes, does §552.321(b) trump other sections of the Government Code. After a statutory construction analysis, the Texarkana Court held §552.321(b) does not deprive a county court at law of its jurisdiction under §25.0003(a). That being said, the Court then analyzed the evidence submitted and the extent to which the County searched for responsive phone records requested.  The County presented uncontroverted evidence that no responsive documents exist. As a result, the trial court properly granted the plea, but based on the challenge to jurisdictional facts, not the jurisdiction of a county court at law.  The court then modified the judgement, taking out references to dismissal of claims for declaratory and injunctive relief, which were not present in Miller’s prayer for relief.

If you would like to read this opinion click here. Panel consists of Chief Justice III Morriss,
Justice Moseley and Justice Burgess. Opinion by Justice Moseley. The attorney listed for the County is Robert S. Davis.  The attorney listed for Miller is Andrew R. Korn.

City did not act in bad faith under PIA in cost estimate calculation; City established it produced all records discovered


Mark Rines v. City of Carrollton 05-15-01321-CV (Tex. App—Dallas, February 13, 2018)

This is a Texas Public Information Act (“PIA”) case where the Dallas Court of Appeals affirmed the trial courts order dismissing the Requestor’s lawsuit. [Comment: this case is a rare one which also deals with cost estimates and allegations of overcharging.]

Rines, the Requestor, filed a PIA request for the civil service files of fourteen specified police officers. The City requested an Attorney General (“AG”) opinion for some documents, and issued a cost estimate letter for the remainder. After production of the uncontested documents, the City refunded some of the costs paid bythe Requestor. After receipt of the AG opinions, Rines filed suit asserting the City acted in bad faith in providing a cost estimate letter and that the City did not comply with his request. The City filed a plea to the jurisdiction which included an evidentiary hearing with testimony. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Rines appealed.

The City’s testimony included how specific City employees conducted searches for records and the results. The City established it produce all records it located which were not contested under the AG opinion request. Rines asserts documents still exist and are missing which must be produced. He also objected to the testimony of record officials who did not have personal knowledge of the records being searched. However, the testimony established the record retention individuals’ job duties entailed custodial functions of the records. Further, Rine’s objection during the hearing was not ruled upon, so provides the appeals court nothing to review. In general, the City’s jurisdictional evidence demonstrates it searched for the requested information, officially requested responsive documents from relevant individuals, and produced to appellant all responsive information it was able to locate and obtain. Rines produced no evidence as to what was missing or that it was within the City’s records. The City conclusively established it complied with release under the Act.  Rines further did not provide evidence the City’s initial computation for the cost estimate was inaccurate based on the information available at the time. He provided no evidence of how the computation occurred and what was considered. After release, the City refunded monies based on the actual numbers released, but such factored in the non-release of information discovered but subject to the AG opinion.  Nothing indicates the City did not act in good faith in its initial calculation. Simply because the end cost is different does not equate to bad faith.

If you would like to read this opinion click here. Panel consists of Justices Lang, Brown and Whitehill. Justice Lang delivered the opinion of the court. Mark Rines appeared pro se. The attorneys listed for the City are Darrell G-M Noga and Christopher Klement.

Under PIA, school could reasonably anticipate litigation even though it was given only a “conditional” threat of suit


Appellant, B. W. B.// Cross-Appellant, Eanes Independent School District v. Appellee, Eanes Independent School District// Cross-Appellee, B. W. B03-16-00710-CV (Tex. App — Austin, January 10, 2018)

This is a Public Information Act (“PIA”) and mandamus action where the Austin Court of Appeals affirmed the order granting in part the school’s motion for summary judgment but denying its plea to the jurisdiction.  BWD’s daughter attended Eanes Independent School District (“EISD”) and was on the soccer team. BWD alleges the coach bullied his daughter and released her private information, thereby violating FERPA, HIPPA, and EISD’s Acceptable Use Guidelines for Technology.  He requested records related to Coach Rebe from EISD. The school sought an AG opinion regarding certain documents.  However, federal regulations do not allow the AG to review certain documents pertaining to student records. The AG deferred to the EISD to determine student record applicability.  The AG then determining the remining records were excepted under the litigation exception of the PIA since BWD had threatened formal complaints under the administrative process against the coach. BWD filed suit to compel the disclosure of the records. The trial court denied EISD’s plea to the jurisdiction but granted, in part, EISD’s summary judgment motion.

The court first held, contrary to EISD’s arguments in its plea, requestors are permitted to sue for mandamus to challenge an AG opinion regarding the release of information. They are not required to accept the AG’s determination of any exceptions. Therefore, the trial court has jurisdiction over this suit. FERPA (the federal statute on school privacy issues) establishes BWD has no standing to challenge EISD’s determination of what is a student record and what is not. Under FERPA a parent has a right to examine those records, and this right trumps the PIA’s litigation exception. Unfortunately, FERPA creates no private right of action. BWD’s course of action is to file a complaint with the federal Department of Education for the right to inspect the records.

For what remains, in order to fall within the litigation exception, the school must have reasonably anticipated litigation at the time of the records request and the withheld information must relate to the anticipated litigation. An isolated threat over the telephone, without more, does not trigger “reasonably anticipated litigation” for an entity. However, when a genuine dispute exists involving the entity, at least one threat of litigation has been presented, and the entity receives communication from an attorney, an entity may reasonably anticipate litigation. Here, BWD sent an email to Coach Rebe and carbon copied four other EISD email addresses addressing the dispute. His attorney contacted the school and stated they intend to file a formal administrative complaint, but they would not file suit if the coach had no further contact with the student. A “conditional” threat of litigation, matched with the other case specific facts, established EISD could reasonably anticipate litigation in order to assert the exception. The documents at issue in this case relate directly to the dispute and the coach. As a result, they can be withheld.

If you would like to read the opinion click here. Panel consists of Chief Justice Rose, Justice Field and Justice Bourland.  Memorandum opinion by Justice Field. The attorneys listed for B.B.W is Brian W. Bishop John J. Hightower. The attorneys listed for the Eanes Independent School District are Jonathan G. Brush and Dylan Farmer.

Trial Court could not properly issue TRO to enjoin city from considering annexation ordinance


In Re City of Pearland, 14-17-00921-CV (Tex. App. – Houston [14th Dist.], January 9, 2018)

The 14th Court of Appeals in Houston granted the City’s petition for mandamus compelling a trial court to lift its temporary restraining order issued in an annexation lawsuit.

Senate Bill 6, which requires a city to obtain consent by a majority of the property owners in an area before it can annex, went into effect December 1, 2017.  The City of Pearland attempted to annex an area prior to the effective date. On November 20, Plaintiffs filed their First Amended Petition, which alleged that the City, in the annexation process, had failed to comply with certain provisions of the Texas Open Meetings Act, amongst other things. Plaintiffs requested a temporary restraining order restraining the City from considering the annexation ordinance, which the trial court granted and set an injunction hearing for December 4, 2017. Pressed for time, the City filed a mandamus and request for emergency relief in the court of appeals.  The court issued an order for the trial court to remove the restraining order on November 27th , but filed this supplemental brief explaining its legal reasons.

Under section 551.142(a), a property owner, whose property has been annexed, has standing to challenge the validity of and enjoin an annexation ordinance based on violations of the Open Meetings Act.  Therefore, if the City did violate the Texas Open Meetings Act, the property owners have a legal remedy to challenge the annexation (after it occurs) for violations of the Act. The purpose of a TRO is to preserve the status quo. By restraining the City’s actions and setting a hearing after the deadline, the district court essentially had made a final, non-appealable adjudication affecting the City. That is not maintaining the status quo but issuing a ruling on the merits.

If you would like to read the opinion click here. Panel consists of Chief Justice Frost, Justice Busby and Justice Wise.  Memorandum Opinion Per Curiam. The attorneys listed for the City are John J. Hightower, Scott Bounds and Allison Poole. The attorneys listed for the property owners are Sayyed Omar Izfar, Scot Clinton and H. Fred Cook.

Dallas Court of Appeals disagrees with El Paso Court of Appeals and holds civil service commission dismissal of grievance is still subject to appeal to district court


Rodney D. Bailey v. Dallas County, et al.,  05-16-00789-CV (Tex. App. – Dallas, December 21, 2017)

This is a county civil service case where the Dallas Court of Appeals affirmed-in-part and reversed-in-part the County Defendants’ plea to the jurisdiction filed in a district court case challenging his termination.

Bailey was a Dallas County Deputy Sheriff who was indicted for sexual assault and suspended from active duty.  Bailey timely filed a grievance challenging his termination.  Before the Civil Service Commission (“Commission”) held a hearing, the County dismissed the charges against Bailey.  Once the hearing was set, the County requested that the Commissioners dismiss Bailey’s grievance because he did not request a hearing within thirty days of the dismissal of the indictment, which the County asserted was required by §5.02(2) of the Dallas County Sheriff’s Department Civil Service Rules.  The Commission granted the motion. Bailey then filed suit in district court under §158.037 of the Texas Local Government Code, which allows for an appeal from a  Commission order removing him or demoting him. He also brought declaratory judgment claims asserting the Commission’s rules were void and the Commission acted in an ultra vires manner.  The County Defendants filed a plea to the jurisdiction, which the trial court granted. Bailey appealed.

The County Defendants asserted the Commission’s order did not demote or remove him but was simply a dismissal of the appeal. However, this has the effect of leaving the Sheriff’s removal in place. The court noted County of El Paso v. Zapata, 338 S.W.3d 78 (Tex. App.—El Paso 2011, no pet.) expressly supported the County Defendants’ position. However, the court disagreed with the El Paso Court of Appeals, thereby causing a split in the districts. The Commission’s dismissal supported the Sheriff’s removal and therefore §158.037 was applicable. Next, the court analyzed the UDJA claims. Ultra vires claims under the UDJA are prospective only. Bailey clearly is seeking retrospective relief under the UDJA, which is not permitted. Bailey’s request for a prospective hearing would require the retrospective setting aside of the prior order of dismissal. Bailey’s pleadings also do not actually seek the invalidity of a Commission rule or state statute. He asserts the Commission injected provisions which are not contained within the state statutes. These are complaints about the applicability and construction of the sections, not that they are invalid.  Bailey sought a writ of mandamus ordering the County to provide him a Commission hearing. The court disagreed the Commission had the discretion to provide Bailey a hearing. Officials have no discretion to misapply the law. As a result, the court had jurisdiction to hear Bailey’s mandamus claim to a hearing, even though it has a retrospective effect. Finally, the County asserted the Commission was not a separate jural entity subject to suit. Whether the Commission has a separate and distinct legal existence is a jurisdictional fact question. The County has the burden in a plea.  It presented no evidence the Commission does not have a separate and distinct legal existence.  The court, in a footnote, stated it expressed no opinion as to what the ultimate result of the analysis would be once evidence is submitted, only that the trial court had jurisdiction to consider the issue.

If you would like to read this opinion click here. Panel includes Justice Bridges, Justice Myers and Justice Schenck.  Memorandum Opinion by Justice Myers. The attorney listed for Bailey is Lance Franklin Wyatt.  The attorney listed for the County Defendants is Tammy Jean Ardolf.

El Paso Court of Appeals holds non-appearance jurors failed to show waiver of immunity in contempt/fee challenge case but should be allowed to amend.


Joshua Luttrell, et al v. El Paso County, et al., 08-16-00090-CV (Tex. App. – El Paso, December 20, 2017).

There is no way to categorize this case in a single sentence. In the thirty-nine page opinion, the El Paso Court of Appeals addressed a challenge to El Paso County’s use of a special assignment judge who would issue and handle all contempt proceedings when a juror would fail to appear for duty. Long opinion means long summary — sorry.  The Court held the County retained immunity based on the pleadings, but the Plaintiff should be afforded the opportunity to amend. The case was remanded.  For government attorneys or those suing governments, this opinion provides a good basis and starting point for various immunity issues and Uniform Declaratory Judgment Act (“UDJA”) claims.

Appellants filed a lawsuit on behalf of themselves and others, naming Judge Woodard and El Paso County, requesting a declaration that their contempt judgments were void for lack of jurisdiction and that Judge Woodard imposed court costs and fees in an “illegal” manner.  Apparently, when a juror failed to respond to a jury summons in a particular court in El Paso County, that court would either “refer” or “transfer” the matter to Judge Woodard for the purpose of allowing him to conduct contempt proceedings against the recalcitrant juror.  The collective jurors sought to have their court costs and fees removed and the process stopped.  The case has many implications and court performed various analyses of statutes discussing the power of the courts and the counties. By the time the case hit the Court of Appeals, Judge Woodard had been dismissed under judicial immunity and the only issue was the immunity of the County. The County filed a plea to the jurisdiction, which the trial court granted. The collective jurors appealed.

The court began with a history of governmental immunity and transitioned into immunity in declaratory judgment proceedings. The court cited various cases noting the UDJA only waives immunity if the validity of a statute (or ordinance) is in play. The Appellants failed to identify a statute being challenged. Their pleadings “reveal that the true nature of their claims center on their belief that the actions of Judge Woodard and/or the County violated existing law, i.e., that they were held in contempt in violation of their due process rights, and that they were accessed illegal court costs and fees…”  Such claims cannot be brought under the UDJA. Additionally, the UDJA may not typically be used to collaterally attack, modify, or interpret a prior court judgment. The contempt proceedings were declared to be criminal in nature, not civil. Civil courts may only exercise “equity jurisdiction” in cases involving criminal proceedings in a “narrow” set of circumstances, which are not present here. The UDJA is the wrong vehicle for making a challenge to the validity of a criminal contempt judgment.   There is a line of cases stating the UDJA can be used to collaterally attack void judgments. The proper method to collaterally attack a criminal contempt judgment as being void is through either a petition for a writ of habeas corpus when the contemnor has been subjected to jail time, or a petition for a writ of mandamus when, as here, the contemnor is subjected only to a fine. Such are exclusive mechanisms.

Appellants also sought the recovery of the fines, fees and costs, which they believe Judge Woodard wrongfully imposed.  However, Appellants’ request for a “refund” cannot be brought in a UDJA proceeding in the absence of legislative permission. When fees are paid in the context of a judicial proceeding, the aggrieved party may challenge the imposition of those fees (illegal or otherwise) in the context of those proceedings, thus satisfying the requirements of due process.  When a party pays an illegal tax or fee “under duress” in an administrative matter they may challenge it, but these were judicial proceedings. In a judicial proceeding, once a defendant pays the fee, it is voluntarily given. To avoid paying the fee, the defendant must challenge it in the proceedings or utilize another system established for the challenge.  Appellants had other means of challenging the validity of the costs and fees imposed on them. They could have challenged it in the proceedings, filed a mandamus or brought claims under Article 103.008 of the Texas Code of Criminal Procedure, which provides a separate statutory remedy to correct erroneous or unsupportable court costs.  They failed to do so.  As to Appellants attempted ultra vires claim, they only named the County. Such claims must be brought against an official.    Additionally, claims of judicial court action versus county administrative action, falls outside the scope of any takings claims under the Texas Constitution. As to the Appellants §1983 claims, a judge has judicial immunity from a lawsuit brought under §1983, and therefore cannot be named as the “person” who violated the plaintiff’s constitutional rights, when the lawsuit is based on the judge’s judicial actions.  A county may only be held liable in a §1983 case if the plaintiffs are able to demonstrate that the county had an “official policy or custom” that caused them to be subjected to a denial of a constitutional right.  Appellants have not alleged in their current pleadings that the County had any policy or custom that deprived them of their federal constitutional rights and only allege Judge Woodard acted without authority. There is nothing in the pleadings or the record to suggest that Judge Woodard was executing any county policies and, to the contrary, everything points to him acting in his judicial capacity (for which he is immune from suit).  Finally, the  court noted that while the panel “expresses no opinion” as to whether the Appellants can successfully amend, they recognized the should be given the opportunity. The court ends by stating “[w]e do caution Appellants, however, that any amendment to their pleadings must focus on the liability of the County as the only remaining party in the proceeding, with the recognition that Judge Woodard is no longer a party to the proceedings, and expressly explain what actions the County took that would render them liable to Appellants.”   The case was then remanded.

If you would like to read this opinion click here. Panel includes Chief Justice McClure, Justice Rodriguez and Senior Judge Larsen. Opinion by Justice Rodriguez.  The docket page with attorney information is found here.

In annexation opposition, Dallas Court of Appeals opinion could result in trial courts using TOMA injunction provision to prevent legislative acts not yet up for vote


In Re: City of Mesquite, Texas 05-17-01303-CV (Tex.App— Dallas, November 14, 2017)

In this original mandamus proceeding, the Dallas  Court of Appeals held the trial court did not abuse its discretion in granting certain injunctive relief prohibiting annexation in an extraterritorial  jurisdiction.

In its request for injunctive relief, the County alleged that the City violated the Texas Open Meetings Act (“TOMA”) and Texas Local Government Code by failing to provide proper notice of certain meetings and proper notice of the land sought to be annexed. Essentially, the County, through its authority to bring matters on behalf of the State of Texas, filed this as a quo warranto proceeding. The City, as noted in its briefing, was attempting to complete the annexation before the application of recent legislation changing the annexation scheme in Texas.  The trial court issued an injunction order prohibiting the City from taking any action until the trial court made a ruling on the merits. The City filed an original mandamus petition in the Dallas Court of Appeals seeking to have the court order the trial judge to vacate the injunctive order.

The City does not address the intervenors’ and County’s allegations of TOMA and Local Government Code violations or their contention that injunctive relief was properly sought and obtained under TOMA.  It does not explain how the allegations of TOMA violations are not likely to reoccur. Finally, the City contends that if it cannot annex the properties in question today, it will not be able to annex them at all. However, it does not explain how that contention would establish that the trial court abused its discretion.  As a result, it has not established the requirements entitling it to mandamus relief. [Comment: the opinion does not address the City’s arguments in its brief that the trial court lacked authority to enjoin a legislative function, which addresses the injunctive ability under TOMA and Local Government Code and that the annexation law changes effective December 14th, so no similar occurrence is possible. The State asserted the injunction only prevented the  City from holding meetings contrary to state law and that no irreparable injury is necessary to receive a TOMA injunction.]

If you want to read the opinion, click here. The panel consists of Justices Lang-Miers, Myers and Boatright. Justice Boatright delivered opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

DA entitled to mandamus relief from district court order recusing his entire office from criminal case


In re The State of Texas ex rel. John Warren 02-17-00285-CV (Tex.App— Fort Worth, September 12, 2017)

This is a mandamus action where the Fort Worth Court of Appeals granted the mandamus, effectively reversing a district court order preventing the Cooke County District Attorney from prosecuting a specific individual.

A Cooke County grand jury indicted Edington with possession of methamphetamine. While the DA, Warren, has assistant district attorneys in his office, he assigned the case to himself. At different times, the record reflected Warren has spoken to different individuals and became angered with Edington refused to take a plea offer, including Edington’s wife. However, Edington’s wife was a state witness.  Edington’s attorney made an oral motion to recuse Warren. The district judge, Judge Woodlock, granted the motion stating he did not “like somebody’s wife being accosted and talked to about the case” and proceeded to remove Warren’s entire office. Warren brought this mandamus action.

The court addressed both recusal and disqualification. The office of district attorney is constitutionally created and protected; thus, a district attorney’s authority cannot be abridged or taken away.  Warren argued that because no evidence of the statutory grounds allowing for disqualification of a district attorney was admitted and because only a district attorney may recuse himself based on a conflict of interest, he has shown a clear right to relief from the order. He further argues that because the State’s right to appeal is limited, he does not have an adequate remedy at law. The Fort Worth Court of Appeals agreed. Disqualification is dictated by statute and no evidence was submitted for any statutory grounds. Tex. Code Crim. Proc. Ann. art. 2.08. The court was also unable to locate or reference authority for such a forced recusal absent a conflict of interest. Therefore, the respondent’s order violated well-settled legal principles, and Warren has shown a clear right to mandamus relief.

If you would like to read this opinion click here. The panel consists of Justices Meier, Gabriel, and Sudderth. Justice Gabriel delivered the opinion of the court. Attorneys listed for the State of Texas is Eric Erlandson and John D. Warren. Attorney listed for the real party in interest is J. Stanley Goodwin.

San Antonio Court of Appeals holds river authority can be compelled to attend contract arbitration

San Antonio River Authority v. Austin Bridge & Road, L.P. and Hayward Baker Inc. 04-16-00535-CV ( Tex.App— San Antonio, August 9, 2017)

This is an interesting case where the issue of sovereign immunity impacts whether an entity is a “party’ to a contract and bound by an arbitration clause.

The Bexar-Medina-Atascosa Counties Water Control and Improvement District No. 1 (“BMA”) sought state funding to repair the Medina Lake Dam.  As part of the funding provided by the Legislature, the San Antonio River Authority (“River Authority)” and several other water district entities/authorities entered into a cooperative interlocal agreement to assist with the repair project. This arrangement was dictated by H.B. 1741, which designated the River Authority as the project manager and contract administrator for the project. After bidding was complete, Austin Bridge became the contractor. The bid agreement provided the River Authority would be responsible for paying Austin Bridge in accordance with a project management schedule. The Agreement contained an arbitration clause. Austin Bridge subcontracted with Hayward Baker to perform cement portions of the repair work. Costs ran over and the River Authority declined to pay for some additional work and costs incurred by Hayward Baker. The subcontractor initiated arbitration proceedings against Austin Bridge for the lack of payment. Thereafter, Austin Bridge initiated arbitration proceedings against the River Authority for breach of contract. The River Authority responded with a motion to dismiss noting its immunity from suit was not waived under Tex. Loc. Gov’t Code Ann. § 271.152 (West 2016) because its involvement did not include entering into a contract, it was simply designated as the project manager. If it is not a party to the contract, it is not bound by the arbitration procedures. It also asserted the immunity issue could only be decided by a court of law, not an arbitrator. After cross-motions for summary judgment, the trial court ruled in favor of Austin Bridge and Hayward Baker.  The River Authority appealed.

The San Antonio Court of Appeals first held the determination of whether a valid arbitration agreement exists is a legal question subject to de novo review. One of the universally accepted principles of law is that an individual must be a party to a contract in order to be bound by it. After analyzing the situation the court held the question of immunity was properly addressed by the trial court. Courts must have jurisdiction in order to stay arbitration and if immunity is not waived, the trial court has no power to compel arbitration. Turning to whether the River Authority retains immunity, the court noted all parties argued around §271.152 as to waiver. In this case, the River Authority, along with BMA and other governmental entities, entered into an interlocal agreement in order to work together and plan, fund, and implement the Medina Lake Dam Project.  The River Authority’s Agreement with Austin Bridge allowed River Authority to fulfill its duties and responsibilities under both House Bill 1741 and the interlocal agreement. Therefore, the Agreement qualified as “services to a local governmental entity” under the plain meaning of section 271.152’s limitations. However, Chapter 271 does not waive immunity from suit on a claim for damages not recoverable under § 271.153. Section 271.153(b) precludes recovery of consequential damages, “except as expressly allowed under Subsection (a)(1).” The court agreed with Austin Bridge that the damages they sought are amounts due and owed under the Agreement.  Whether they are correct that those amounts are required to be paid under the Agreement is a question for the arbitrator and such is not a question that pertains to a waiver of immunity. The River Authority next argued §2009.005(c) of the Texas Government Code prohibits it from entering into any form of binding arbitration. The Governmental Dispute Resolution Act (“the Act”), which includes Chapter 2009 of the Government Code,  was enacted to encourage the peaceable resolution of lawsuits involving governmental bodies in a fair and expeditious manner. The purpose of §2009.005 is to ensure the Act is not interpreted as a waiver of sovereign immunity or as having any effect on the waiver of sovereign immunity under other laws.  It is not a prohibition on arbitration by state agencies. As a result, the River Authority must be compelled to participate in arbitration.

If you would like to read this opinion click here. The panel includes Justices Angelini, Barnard and Chapa. Justice Barnard delivered the opinion of the court. Attorney listed for San Antonio River Authority is David W. Ross. Attorneys listed for Austin Bridge & Road, L.P. are Matthew Waterman and Gregory Alan Harwell. Attorneys listed for Hayward Baker Inc. are Thomas W. Fee and Timothy R. George.

Dallas Court of Appeals dismisses referendum/mandamus claims against council but allows mandamus claims to go forward to trial against City Secretary


City of Plano, Texas, et al. v. Elizabeth Carruth, et al.  05-16-00573-CV (Tex. App— Dallas, February 23, 2017)

This is a referendum case where the Dallas Court of Appeals dismissed all but one of the Plaintiffs’ claims under a plea to the jurisdiction.  It held the trial court had jurisdiction to consider the merits of the remaining mandamus/ultra-vires claim against the City Secretary.

The City adopted a comprehensive plan and zoning ordinance. The City Charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance. Citizens submitted a referendum petition to change the ordinance adopting a change in the comprehensive plan to the City Secretary. The City Secretary did not act on the referendum petition.  The City took the position that zoning and comprehensive plans have been removed from the referendum scope by state law. So no action is required.  The citizens filed a writ of mandamus seeking a court order directing the City Secretary to present the petition to the City Council and directing the City Council to reconsider the Plan and submit it to popular vote if the council did not entirely repeal it. In addition, they sought a declaratory judgment that pending approval by the voters in a referendum the Plan is suspended. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The Court of Appeals first held the Plaintiffs properly plead jurisdiction against the City Secretary. The court held there is a difference between the merits of whether mandamus should be issued with whether the trial court has jurisdiction to hear those merits. “Whether the trial court should ultimately grant or deny the petition for mandamus is not the issue before [the court]. “ Based on the language in the pleadings, the trial court has jurisdiction to hear the merits of the mandamus claim. However, no mandamus can be issued against the remaining officials since the City Secretary has not submitted the petition to the Council. Their duty is not triggered unless and until the petition is submitted, therefore the claims are not ripe. Finally, the court dismissed the declaratory judgment claims noting the charter does not provide that an ordinance is suspended immediately upon the filing of a referendum petition.  The Charter is clear that a suspension applies only upon the subject being submitted to popular vote. Until the Council is presented with the petition and acts on it, any declaration about the effect of that action would be advisory. The trial court’s order was affirmed in part and reversed in part.

If you would like to read this opinion click here. The Panel includes Justice Lang- Miers, Justice Stoddart, and Retired Justice O’Neill. Justice Stoddart delivered the opinion of the court. Attorneys for the Appellants: Robert J. Davis, William A. Taylor, and Timothy Dunn.  Attorney for the Appellees: Jack George Ternan.

Austin Court of Appeals grants TABC plea to the jurisdiction in PIA lawsuit by requestor


McLane Company, Inc. v. Texas Alcoholic Beverage Commission, et al., No.03-16-00415-CV (Tex. App. – Austin, February 1, 2017).

This is a Texas Public Information Act (“PIA”) request lawsuit where the Austin Court of Appeals affirmed the granting of several pleas to the jurisdiction by a state official and the Texas Alcoholic Beverage Commission (“TABC”).

In 2015 McLane Company, Inc. (“McLane”) submitted a PIA request to the TABC. The TABC sought an opinion from the Texas Attorney General’s Office under the PIA procedures. The AG determined most of the information must be released, but allowed two exceptions. The TABC filed suit against the AG and McLane intervened. McLane seeks a writ of mandamus ordering TABC to produce the requested information. McLane also seeks declarations under the Texas Uniform Declaratory Judgments Act (“UDJA”). It further sued Sherry Cook, TABC’s Chief Administrative Officer and Officer for Public Information asserting her failure to release the information as an ultra-vires activity. TABC filed a plea to the jurisdiction contending sovereign immunity deprived the trial court of jurisdiction over McLane’s UDJA and ultra-vires claims. Cook also filed a plea to the jurisdiction asserting that sovereign immunity barred McLane’s suit against her. The trial court granted the pleas and McLane appealed.

The Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam).  To the extent McLane’s petition seeks the trial court to order “the PIA requires the TABC and Cook to promptly search for and produce” responsive documents, and the method in which they are to search, such a suit falls outside of the confines of the declaratory judgment action authorized by the PIA. Instead, such relief seeks a declaration of McLane’s rights under the statute.  As articulated in the Sefzik case, immunity is not waived under the UDJA except where the invalidity of an ordinance or statute is at play. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. As a result, the UDJA claims raised in the plea were properly dismissed. Further, while sovereign immunity does not bar a true ultra-vires claim against a public official, McLane’s claims stem from the belief Cook was not performing a reasonably comprehensive search. The PIA does not authorize a declaration as to the search performed. Further, even if a proper ultra-vires claim was factually pled, the redundant remedies doctrine precludes McLane pursuing it.  The legislature created an explicit waiver of sovereign immunity in the PIA, and neither TABC nor Cook has challenged McLane’s right to intervene in the underlying PIA suit. McLane has a right of potential recovery under the PIA and therefore cannot sue for the same thing under an ultra-vires theory. As a result, the trial court property granted the plea.

If you would like to read this opinion click here. The Panel Includes Chief Justice Rose, Justice Field, and Justice Bourland. Justice Field delivered the opinion of the court. Click here for the docket page to see the representatives for the parties.