Category Archives: Separation of Powers

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

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

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

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

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

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

December 2018 Condensed Summaries

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The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

U.S. 5th Circuit holds promoter of sex convention had standing to sue after City passed ordinance banning convention

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Three Expo Events, LLC v City of Dallas, 17-10632 (5th Cir. October 24, 2018).

This is a First Amendment case involving a sex convention where the U.S. 5th  Circuit reversed an order granting the City’s motion to dismiss.

Three Expo Events, L.L.C. (Three Expo), produces adult love- and sex-themed conventions in major cities of the nation. It held just such a convention in 2015 at the Dallas Convention Center and planned to return in 2016. The 2015 convention, which hosted near nude and sexual activities, drew protesters, but the City originally took the position it could not constitutionally preclude the event in 2016. In preparation for the convention and consistent with its business model, Three Expo formed a local entity (Exotica Dallas) to enter into and hold the lease for the convention. However, the City then passed a resolution banning the event. Three Expo filed suit against the City in federal court and sought a preliminary injunction to prevent the City from enforcing the resolution. The district court denied Three Expo’s motion for a preliminary injunction, and no event took place in Dallas in 2016. However, Three Expo proceeded with the suit alleging violations of the First Amendment, the Equal Protection Clause, and the Bill of Attainder Clause. The City filed a motion to dismiss for lack of jurisdiction, which the trial court granted.  Three Expo appealed.

The panel first analyzed the record and determined the trial court make “clear mistakes of fact” in its findings. While the City tried to argue the interplay between Three Expos and Exotic Dallas prevented a finding the City targeted Three Expos, the “overwhelming” evidence in the record indicated the City “firmly intended to make certain that the Exxxotica convention would not be staged by anyone in the Convention Center in 2016. …Three Expo, the undisputed promoter and proposed presenter of Exxxotica 2016, was banned from presenting Exxxotica 2016” due to the totality of actions by the City. The panel held Three Expo established the three elements required for standing on each of its claims and should be permitted to proceed with its suit. The Court held the trial court committed a “manifest failure to apply the well-established principles of law governing Article III standing to the entire evidence of record in this case.” The dismissal was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Jolly, Dennis and Elrod. Opinion by Justice Dennis. The attorney for Three Expos is listed as J. Michael Murray.  The attorney listed for the  City is James Bickford Pinson

Texas Supreme Court holds county official removal statute is subject to Texas Citizens Participation Act and sovereign immunity is waived for attorney’s fees of losing party

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State of Texas ex Rel. George Darrell Best v Paul Reed Harper, 16-0647, — S.W.3d – (Tex. July 29, 2018).

This is a Texas Citizens Participation Act (“TPCA”) case where the Texas Supreme Court held a suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. Sovereign immunity is also abrogated for certain types of attorney’s fees under the TCPA.  This is a 30-page opinion, so the summary is a bit long.

Paul Harper was elected to a position on the Somervell County Hospital District Board and allegedly tried to make good on his campaign promises or removing taxes and employees. In response, a county resident named George Best sought to remove Harper under the county removal statute.  Best alleged that Harper violated the district’s bylaws at a board meeting by moving to set the district’s tax rate at zero.  Best also alleged that Harper posted a blog that falsely accused the district’s administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency.  The removal statute authorizes a citizen to file suit, but it also requires the county attorney to “represent the state” in any removal proceedings that take place. The Somervell county attorney opted to appear in this case as plaintiff on the state’s behalf. The state adopted Best’s allegations, and it added an allegation that Harper engaged in misconduct by violating the Texas Open Meetings Act by texting board members. Harper filed a motion to dismiss the case under the TCPA asserting the removal statute impedes the exercise of the right to petition and right of free speech. After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss.  Harper appealed. The court of appeals reversed, holding that the TCPA applies to the state’s removal action and that the state failed to establish a prima facie case for removal.  In the interim, Harper lost the last election and no longer sits on the board. The Texas Supreme Court granted the state’s petition for review.

The Court first noted the Plaintiffs’ claims are not moot.  While Harper argues mootness cannot be addressed because the record does not contain information he lost the election, a court must consider issues affecting its jurisdiction sua sponte.  Here, the state filed a “status report” with the court of appeals that included an election canvass confirming that Harper lost his reelection bid. Harper does not dispute that he lost the election or that he no longer holds the position. The Court then analyzed and held the attorney’s fees issues and sanctions issues still remain, so the case is not moot. However, the Court cautioned that such applies only if attorney’s fees are ordered prior to the case being moot. The court of appeals ordered the trial court to award attorney’s fees (since it is mandatory under the TCPA) prior to the election, so this particular case survives. And, since the attorney’s fees are required by the TCPA to a prevailing party, the aspects of whether the TCPA applies remain live.

The State asserted a removal suit is not a “legal action” under the TCPA, because it is a specific statute seeking political relief which is controlling over the general TCPA. The term “legal action” is defined within the TCPA. Using rules of statutory construction, the Court held a “remedy” is another word for “relief” and the TCPA authorizes relief as a legal action. As a result, the TCPA applies. Further, the Court held the TCPA’s dismissal provisions complement, rather than contradict, the removal statute. The rule that a specific provision controls over a general provision applies only when the statutes at issue are ambiguous or irreconcilable. The Court found no ambiguity or irreconcilable language after analysis.

Next the Court noted that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney.”  However, the TCPA’s purpose includes a very distinct intent to encourage participation in government to the maximum extent permitted by law. Enforcement action is not defined in the TCPA. Again, using rules of statutory construction, the Court held the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. Under this definition, a removal petition is not an “enforcement action” by itself or in all cases. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. When a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable. However, when it is not unlawful conduct, it is not an enforcement action. Incompetency and drunkenness are both a basis for removal under the removal statute, but neither is against the law. “Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs.  … Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.”  “We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s demands does not render him incompetent.” Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself.  Therefore, Best’s claims are not enforcement actions and the TCPA still applies.

However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. Best did not allege official misconduct against Harper, but the state did in the form of a Texas Open Meetings Act violation. This is sufficient to form the basis of an enforcement action. The Court held Harper may benefit from the TCPA’s expedited-dismissal provisions for the grounds that Best’s initial removal petition raised, but not for the state’s additional ground.

The state then argued the attorney’s award and remand were improper against it given its immunity. The Court held the state waived its immunity from liability as it did not raise it.  The state only raised immunity from suit. The Court then went through a myriad of arguments back and forth regarding immunity from suit. Ultimately, the Court held “[b]ecause the state should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them—and because when it does sue, it risks paying only attorney’s fees (rather than damages or some other uncapped sum), abrogating the state’s sovereign immunity in the TCPA context does not present any grave danger to the public fisc. … Because the state was not operating within sovereign immunity’s bounds when it joined Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s terms.”

The dissent argued the majority ignores the governing statute’s language and undermines the Court’s well-established sovereign-immunity precedent. The dissent asserts the removal statute’s application of incompetence and drunkenness apply only to remove an officer from his official duties. A county officer’s “official duties” are substantive duties imposed by statutory law and therefore the entire case is an enforcement action exempt under the TCPA. The dissent took great issue with the Court’s abrogation of immunity from suit for attorney’s fees.

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

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.

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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

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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.

Permanent injunction prohibiting city from holding election on red light cameras dissolved

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The City of Cleveland et al., v. Keep Cleveland Safe, 09-15-00076-CV (Tex. App—Beaumont, July28, 2016)

Plaintiff, Keep Cleveland Safe (“KCS”) filed a petition attempting to stop the City from placing an issue on the ballot for the May 2014 election regarding photographic traffic signal enforcement systems or red light cameras. The trial court permanently enjoined the City and the City appealed.

The City of Cleveland is a home-rule municipality which passed an ordinance authorizing and implementing a photographic traffic signal enforcement program. The City received a petition to ban all red light cameras from another group of citizens. The City Council accepted the Red Light Ban Petition and placed the measure on the ballot as part of a charter amendment. KCS filed this lawsuit in response. KCS argued the Texas Transportation Code vests exclusive control over red light cameras with the “governing body,” making the subject outside the scope of permissible referendums and initiatives. After a bench trial the trial court issued a permanent injunction prohibiting the City from ever considering an initiative or referendum on red light cameras.

The Legislature may remove by general law a subject matter from the initiatory process. However, the claims cannot be moot at the time of trial or appeal. The City asserts even though the May 2014 election has passed, the injunction prohibits it from ever holding such an election. KCS asserts the claim is not moot because others can still submit another initiative to ban the cameras and the subject could evade judicial review.  However, the court held the mere possibility someone else could bring an initiative on the same grounds does not mean the matter is excepted from the mootness doctrine. KCS failed to demonstrate how there is a reasonable expectation that the City will be subjected to the same action again. Additionally, even if the matter was not moot, there is no justiciable question.  “It is well settled that separation of powers and the judiciary’s deference to the legislative branch require that judicial power not be invoked to interfere with the elective process.” The trial court lacked subject matter jurisdiction to issue a permanent injunction that enjoined the election process. “Being lawfully clothed with legislative power, the City should be allowed to exercise that power and to the dictates of its legislative judgment, regardless of whether or not any particular enactment may be valid or invalid.”  Finally, a court should not “declare rights on facts which have not arisen or adjudicate matters which are contingent, uncertain, or rest in the future.”  As a result, the court dissolved the permanent injunction and dismissed the case.

If you would like to read this opinion click here.  The Panel includes chief Justice McKeithen, Justice Kreger, and Justice Johnson. Justice Johnson delivered the opinion of the court. If you would like to see the attorneys for the parties, click here.

City’s billboard registration fee determined to be unconstitutional tax

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Reagan National Advertising of Austin, Inc. d/b/a Reagan National Advertising v. City of Austin, Texas; and Marc A. Ott, being sued in his Official Capacity 03-15-00370-CV (Tex. App.- Austin, June 15, 2016)

This is a case to determine whether a billboard registration fee was a unconstitutional tax. The court held the fee was an fact a tax and unconstitutional.

Reagon owns and operates various billboards subject to the City’s registration requirements. The City raised the registration fee from $110 per year to $200 per year but had no studies or surveys to support the increase. Afterwards, several City employees conducted surveys and determined the costs could be covered in a range from $140 per year to $352, although Reagan had an expert opinion noting the proper costs should be closer to $42 per year. Reagon sued in federal court. However, the federal judge determined that since the fee actually qualified as a “tax” the federal court lacked jurisdiction to rule on a state tax under the Tax Injunction Act. After the federal judge dismissed the case, Reagon sued in state court. After a bench trial the trial court dismissed Reagon’s claims and Reagon appealed.

The first issue addressed was whether Reagon was precluded by the statute of limitations to bring suit. The Court of Appeals held under Tex. Civ. Prac. & Rem. Code Sec. 16.064 Reagon filed suit 60 days after the federal judgment “became final.” While the federal court signed the judgment in 2011, the City’s motion for new trial extended the deadline to determine finality. Once the motion for new trial was denied, the judgment became final 30 days afterwards, which then started the 60 day deadline (i.e 90 days after motion for new trial is denied). Therefore the limitations is tolled. Next the court determined that since the federal judge had to make a determination as a matter of law that the registration fee was a tax in order to determine jurisdiction, that issue was fully and vigorously litigated in federal court. Therefore, the state court is precluded by res judicata from reconsidering that issue. And since no statute authorizes such a tax, the tax is unconstitutional.

To read the opinion click here. Panel consists of Chief Justice Rose, Justice Pemberton and Justice Field. Justice Field issued the Memorandum Opinion. Attorney for Marc A. Ott, being sued in his Official Capacity is Ms. Patricia L. Link. Attorneys for Reagan National Advertising of Austin, Inc. d/b/a Reagan National Advertising are Ms. Elizabeth Von Kreisler, Mr. B. Russell Horton and Ms. Taline Manassian. Attorneys for the City of Austin are Mr. Henry Gray Laird III and Ms. Patricia L. Link.

Constitutional “hold over” provision controls over “resign to run” rule says 13th Court of Appeals

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Richard Bianchi v. The State Of Texas, 13-14-00303-CV (Tex. App. – Corpus Christi, August 21, 2014) This is a quo warranto case where the central issue is the interaction between the “resign to run” rule under the Texas Constitution and the constitutional “hold over” provision. The 13th Court of Appeals held the “hold over” provision controls regardless of the automatic nature of the “resign to run” rule. Bianchi was the County Attorney for Aransas County who was elected to office. He announced to the County Commissioner’s Court that he was running for County Judge and that this means he was automatically resigning his position under TEX. CONST. art. XVI, §65(b).  While the Commissioner’s Court had the right and power to appoint his successor, they chose not to do so, stating in depositions that he was doing a good job. Bianchi stated on numerous occasions in the record that he did resign but was obligated under the Texas Constitutional “hold over” provision to continue with his office until his replacement is appointed. TEX. CONST.  art. XVI, §§ 17.  The District Attorney believed the automatic nature of the “resign to run” rule in the Constitution trumped the hold over provision and that the resignation was automatic in all respects.  He brought suit on behalf of the State of Texas via quo warranto against Bianchi for illegally holding office. The trial court issue an order removing Bianchi and issued findings of facts and conclusions of law. Bianchi appealed. This is a 31 page opinion where a large part of the opinion is the reciting of evidence, testimony, and findings of the trial court. The bottom line is the Commissioner’s Court could have appointed a replacement but chose not to do so. This left Bianchi in the position of County Attorney as a hold over while running for another office. The trial court started the legal analysis noting the ancient nature of a quo warranto proceeding then went into the nature of the two constitutional provisions, then statutory construction principles. In the end the court held the resign to run rule is subject to the hold over provision and since the Commissioner’s Court has made the express decision not to appoint a replacement, Bianchi is still lawfully holding office. That decision is not subject to collateral attack in court as it is in the sole discretion of the Commissioner’s Court.  The State did not sue the Commissioner’s Court, only Bianchi, so their decision cannot be attacked as arbitrary. As a result, the trial court order is reversed and judgment is rendered for Bianchi to remain in office until a successor is appointed. The court went on to cite to another reason for its opinion, holding “[a]s well intentioned and diligently reasoned as it was, the district court’s decision would have uprooted a firmly founded and widely accepted understanding of a critical aspect of Texas constitutional law that is of vital importance to certain public officials. . . The Texas quo warranto statute was never intended to allow for judicial second-guessing of decisions committed to the sound discretion of the County Judge and Commissioners Court. Such decisions are best left to locally-elected public officials who are in the best position to judge the needs of these particular issues and to exercise sound discretion in addressing them. We will not disturb the orderly balance of powers as expressed by the will of the people…” If you would like to read this opinion click here. Panel: Chief Justice Valdez, Justice Perkes, and Justice Longoria. Opinion by Chief Justice Valdez. The attorney listed for the State is Michael E. Welborn.  The attorneys listed for Bianchi are Audrey Mullert Vicknair and  C.M. Henkel, III

District judge not an “appropriate law enforcement authority” under Whistleblower Act says Austin Court of Appeals

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Hunt County Community Supervision and Corrections Department v. Christina Gaston, 03-13-00189-CV (Tex. App. – Austin, August 6, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Whistleblower Act lawsuit. A majority panel of the Third Court of Appeals in Austin reversed the denial. Chief Justice Jones dissented.

Warning: this is a long summary simply due to the factual history and analysis which could not be condensed any further.  However, the case is helpful to anyone who deals with Whistleblower Act violations.

Gaston worked for Hunt County Community Supervision and Corrections Department (“HCCSCD”) as a probation officer of sorts. Her job duties required her to assist trial courts with probation related matters. Community supervision and corrections departments (“CSCDs”) like the HCCSCD serve the district courts and county courts at law handling criminal cases within judicial districts, including probation. Oversight of a CSCD is a committee on which sits the presiding judge of the district, however the legislature has specifically stated CSCDs are distinct entities unto themselves and employees of the CSCDs are not employees of the County, district or judge. The committee appoints a director who possesses sole direct authority over employment issues, in this case McKenzie. In 2011 a new presiding judge — —the Hon. Stephen Tittle–assumed the role on the committee for HCCSCD. Judge Tittle and Gaston had formed a personal friendship during Tittle’s earlier years as a prosecutor. Gaston was later found to have represented an ability to influence Judge Tittle’s decisions due to her friendship and threatened a defense attorney who had angered her with a blacklisting from court appointments. When McKinzie discovered the threats after an internal investigation, he terminated Gaston.  Gaston asserts she was terminated for reporting to Judge Tittle the director and other HCCSCD personnel had violated various laws in their administration of the program. Judge Tittle asserted that he discovered certain local nonprofit contract agencies such as the local food bank had accepted money from probationers in exchange for reduced community hours. Judge Tittle informed McKinzie (the same day McKinzie advised Judge about the results of internal investigation of Gason) of his concerns this violated the law. However in a Texas Attorney General Opinion (GA-0593 (2008), the AG noted an exception existed if donations are made to food banks/pantries. Gaston sued under the Texas Whistleblower Act.  HCCSCD filed a plea to the jurisdiction which the trial court denied and it appealed.

The majority court first stated with numerous references that the analysis must start with the assumption that immunity bars Gason’s. The court then analyzed whether Judge Tittle was an “appropriate law enforcement authority” under the Act. It started the analysis by emphasizing the Act states that the person receiving the report of illegal conduct must be part of a qualifying “entity.” In short, Gason must have a good faith belief the 196th District Court is empowered to “regulate under or enforce” cited criminal provisions or to “investigate or prosecute” criminal offenses as those terms are used in the Whistleblower Act.  Gason’s live pleadings allege no facts to support such a good faith belief, only “a bare conclusion parroting” of the Act but one which focused on the Judge being the entity, not the district court. Given that Judge Tittle had oversight power over McKinzie due to his committee position, reporting to Judge Tittle is the same as reporting to a supervisor. However, the court was still required to analyze whether the 196th was an appropriate entity to make such a report. Citing prior cases and distinguishing others, the court held “appropriate law enforcement authority” denotes “an investigative or executive function” that “[t]he judicial branch does not perform.” The court also went into a separation of powers argument as to why a court cannot perform such executive actions. Gaston argued under chapter 52 of the Code of Criminal Procedure a district court may appoint a Court of Inquiry to investigate criminal activity. However, the evidence and pleadings to not indicate a subjective belief on Gaston’s part her report was meant to trigger a court of inquiry. Further, chapter 52 is not the sort of “free-standing regulatory, enforcement, or crime-fighting authority” that has been held to characterize an “appropriate law enforcement authority.” Therefore the plea should have been granted.  Finally, the majority held the defects are incurable so no remand is appropriate.

The dissent began by examining chapter 52 and that evidence existed demonstrating Gaston had an honest belief Judge Tittle was the appropriate person to provide a report. It is also objectively reasonable to believe a district judge has authority to investigate allegations of criminal misconduct under chapter 52. Further, judges often have administrative functions which could qualify them as appropriate law enforcement authorities. The dissent went through its analysis for each opinion, but this summary is already long enough.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Henson, and Justice Goodwin.  Opinion by Justice Pemberton. Dissent by Chief Justice Jones found here. The attorney for the County is listed as Eric L. Vinson.  The attorneys listed for Gaston are Colin Walsh, Robert J. Wiley, Stacey Cho.

Library’s suit is really one attempting to control discretionary governmental functions for which no waiver of sovereign immunity exists says 13th Court of Appeals

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Texas Music Library and Research Center v. Texas Department of Transportation and Phil Wilson, Executive Director, Cause No. 13-13-00600-CV (Tex. App.- Corpus Christi, July 31, 2014)

This is mainly an agency dispute over the providing of grants. However, the important piece for local governments to get out of this opinion relate to the arguments an individual cannot sue to control governmental body functions through declaratory judgment or injunction.

TxDOT approved a project from the Texas Music Library and Research Center (“Library”) for funding to build a Music History Museum consistent with legislative directives. After the Library expended funds as part of preparing the project, TxDOT changed its mind and advised it intended to divert the funds elsewhere. The Library sued under a variety of claims, but mainly sought to stop TxDOT’s divergence of funds and to force it to change its allocations. TxDOT filed a plea to the jurisdiction which was granted and the Library appealed.

The 13th Court of Appeals first held that the Library’s claims under the Administrative Procedures Act allow it to challenge a rule of the agency; however, that is not what it is doing in this case. The Library is challenging a decision to divert funds or do away with a project which has not been finally approved. As such, issuing an opinion on TxDOT’s rules does not resolve their dispute and therefore they lack standing to bring such a challenge. This claim is “one involving a government officer’s action or inaction.” To succeed under its declaratory judgment claims the Library must establish TxDOT’s executive director “acted without legal authority or failed to perform a purely ministerial act.” Even assuming the Library’s assertions were true—that TxDOT’s director has no authority to withhold funds—it would not establish that TxDOT’s executive director has an obligation to make federal funds available to the Library. The relief requested by the Library would not resolve the actual controversy between the parties because it would not establish whether the Library has a statutory or constitutional entitlement to payment.  Further, nothing in the record shows TxDOT received the federal funds. The alleged duty not to divert federal funds away from the Library’s project is not actual, but rather, hypothetical and contingent and not proper for declaratory relief. The Library has no right to receive federal funds or recoup “sunk costs that were voluntarily incurred in pursuit of governmental funding.” The fact the Library voluntarily prepared the proposal, spent funds on it, and submitted “trade secret” information to TxDOT in order to obtain the funding does not entitle it to any due process or taking claims. Finally, TxDOT’s director has no ministerial duty to fund the project so no mandamus action is proper. The court held that in its view, the “real substance” of the Library’s suit “is an attempt to control state action by seeking to establish the existence and validity of a contract between TxDOT and the FHWA for the Library’s project, enforce performance thereunder, and thereby impose liability on the state.” No waiver of immunity exists.  In a single paragraph the court also notes that to the extent TxDOT made inducing representations, there is no waiver of immunity by conduct.

If you would like to read this opinion, click here. Opinion by Justice Longoria. Attorneys for Appellees Texas Dept. of Transportation and Executive Director Phil Wilson are Betsy Johnson and Richard Farrer. Attorney for Appellant Texas Music Library and Research Center is Jennifer Riggs.

 

Trial court abused its discretion by dismissing eminent domain proceeding

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City of Dallas v. Highway 205 Farms, LTD et al, 05-13-00951-CV (Tex. App. – Dallas, July 22, 2013).

This is a condemnation case where the trial court dismissed the case at the administrative stage, but the 5th Court of Appeals issued a mandamus ordering its reinstatement.

The City filed a statement in the county court at law seeking to condemn a portion of appellees’ property in Kaufman County for a raw water pipeline project. Plaintiff filed a motion to dismiss arguing the matter had been pending for eighteen months with no activity and the City had failed to prosecute the case with due diligence. The City responded that because the case was still in the administrative stage of a condemnation proceeding, the trial court lacked subject matter jurisdiction to dismiss the case. The trial court granted the motion to dismiss and the City appeals.

The Dallas Court of Appeals held an eminent domain action is not within the general jurisdiction of the county court and that any power to act in such a proceeding is derived from the eminent domain statute. The Legislature has devised a two-part procedure for an eminent domain action involving first an administrative proceeding, and then, if necessary, a judicial proceeding.  The subject matter jurisdiction of the judiciary is only triggered after a party files an objection to the commissioners’ award. During the administrative phase, the statute expressly limits the trial court’s authority to appointing the commissioners, receiving their opinion as to value, and rendering judgment based on the commissioners’ award. The administrative phase is completely separate from any judicial proceeding that may later take place, and the property code does not provide the trial court with authority to oversee an ongoing administrative proceeding. The trial court has no authority to control the timing of the special commissioners’ hearing as the power to set the time and place of the hearing is expressly delegated to the commissioners and the trial court cannot interfere.  As a result, it was an abuse of discretion for the trial court to dismiss the matter and it was ordered reinstated.

If you would like to read this opinion click here.  Panel: Justice Fillmore, Justice Evans and Justice Lewis.  Memorandum opinion by Justice Evans. The attorneys listed for the City are Barbara E. Rosenberg, Thomas P. Perkins Jr., Brandi Youngkin, Christopher D. Bowers, James B. Pinson and Warren M. S. Ernst.  The attorneys listed for Highway 205 Farms are Hayley Ailshie, Charles A. Salazar, Kimberly S. Keller, Edward “Eddie” Vassallo.

13th Court of Appeals holds determination of City boundaries is a political question that courts have no jurisdiction to hear

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CITY OF CORPUS CHRISTI, TEXAS v. CITY OF INGLESIDE, 13-13-00088-CV (Tex. App. – Corpus Christi, May 29, 2014).

This is a dispute between two cities and their municipal boundaries where the definition of “shoreline” in their ordinances became critical. The trial court denied Corpus Christi’s plea to the jurisdiction in the declaratory judgment action for interpretation, but the 13th Court of Appeals reversed.

Ingleside filed a declaratory judgment suit against Corpus Christi to construe a boundary definition of “shoreline.”  Ingleside claimed the definition allowed for double taxation. Corpus Christi filed a plea to the jurisdiction on numerous grounds including that only the City can define its boundaries, sovereign immunity barred Ingleside’s claims and the subject matter was a political question within the sole purview of the legislative body. The trial court denied the plea and Corpus Christi appealed.

The Corpus Christi Court of Appeals started by addressing the political question argument. It quickly held that “If Ingleside is seeking the determination of a political subdivision’s boundary, its suit, whether for declaratory relief or not, is barred as a political question that the legislature must decide.” The dispute states the resolution will settle where geographic areas lie and in which city. Each city’s ordinance defined the boundary between the cities as the “shoreline” so there is no dispute that is the boundary.  Having the court redefine the term will result in an alteration of the boundary line and Ingleside presented no evidence the term “shoreline” was not understood by both cities.  As a result, the relief sought requests the court to venture into a political question over which it has no jurisdiction. The court reversed the denial of the plea and dismissed Ingleside’s claims.

If you would like to read this opinion click here. Panel: Chief Justice Valdez, Justice Rodriguez, and Justice Longoria.  Memorandum Opinion by Chief Justice Valdez. The attorneys listed for the City of Corpus Christi are Carlos Valdez and Jody D. Leake.  The attorneys listed for the City of Ingleside are John C. Holmgreen, Jr.,  Shirley Selz an d Michael Morris.