School district failed to establish unauthorized contract, even with TEA report declaring contract was executed in violation of procurement laws

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Harlandale Independent School District v. Jasmine Engineering, Inc, 04-19-00638-CV, (Tex. App – San Antonio, March 11, 2020)

This is a breach of contract/immunity case where the San Antonio Court of Appeals affirmed the denial of the school district’s plea to the jurisdiction.

Harlandale Independent School District (the “District”) and  Jasmine Engineering, Inc. (“Jasmine”) entered into a Professional Services Agreement (“PSA”)which was amended six times. When the District terminated the contract, Jasmine sued for breach of contract.  The District filed one plea to the jurisdiction challenging only the pleadings, which the 4th Court already considered and held Jasmine properly pled a waiver of immunity. On remand, the District filed another plea to the jurisdiction challenging jurisdictional facts. The plea was denied, and the District appealed.

Texas Education Agency (“TEA”) performed an investigation and issued a determination that the District violated state law procurement requirements by entering into the PSA and amending it. The District therefore asserts no valid contract was created. Section 271.152 of the Texas Local Government Code waives immunity for contracts for goods or services. Under chapter 271 a valid contract is one stating the essential terms for providing goods or services to the local governmental entity and that is properly executed on behalf of the local governmental entity. Jasmine Engineering asserts that the TEA cannot determine the validity of the PSA and, if the matter were properly before the trial court, Jasmine Engineering would argue waiver and other legal theories. While the District relies on the TEA report, the District did not advance that it also determined the PSA was not authorized. While it is true that the TEA has the statutory authority to initiate investigations into contracting matters, make findings, and impose sanctions pursuant to its findings, these powers do not imply that the TEA’s findings bind the trial court or are a jurisdictional bar. Tex. Educ. Code §39.057.  And while the TEA report is attached to the plea, none of the supporting documentation was included. As a result, the evidence did not negate the pleadings and the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justices Martinez, Chapa, and Rios. Memorandum Opinion by Justice Martinez. Docket page with attorney information can be found here.

13th Court of Appeals holds statute of limitations properly raised in plea to the jurisdiction and “damage” to real property is limited to two-year SOL

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Danis Tucker and Beverly Tucker v. City of Corpus Christi, Texas, 13-18-00328-CV, (Tex. App – Corpus Christi, Feb. 27, 2020)

This is a takings claim where the Corpus Christi Court of Appeals affirmed the granting of the City’s plea to the jurisdiction involving junked vehicles v antique vehicles.

A City municipal court judge ordered that four vehicles located on the Tuckers’ residential property be seized and disposed of pursuant to the City’s junked vehicles ordinance.  The Tuckers sued claiming a taking under the Texas Constitution. The City filed a plea to the jurisdiction, based in part on a statute of limitations defense,  which was granted.  The Tuckers appealed.

The court first addressed whether the statute of limitations is now considered a jurisdictional defense (as opposed to an affirmative defense) which could be raised in a plea. Adopting reasoning from other districts, the court held Tex. Gov’t Code §311.034 states compliance with statutory prerequisites to suit are jurisdictional. A statute of limitations is a prerequisite to suit and is therefore jurisdictional when dealing with a governmental entity. It, therefore, can be raised in a plea. Under § 16.003 of the Texas Civil Practice and Remedies Code, a takings claim based on a physical seizure of “personal property” is governed by a two-year limitation, while a takings claim based on the actual physical seizure of real property is a ten-year period (referencing adverse possession). However, a takings claim based on “damage” to real property is governed by the two-year limitations period. The statute of limitations begins to run when a claim accrues, which occurred more than four years before the Tuckers brought suit. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Hinojosa, and Tijerina. Affirmed. Opinion by Justice Hinojosa. Docket page with attorney information can be found here.

Texas Supreme Court holds supervisor’s order to use tear-gas gun was “use” under TTCA, but riot exception preserved immunity

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Texas Dept. Crim. Justice v Cesar Rangel, 18-0721, (Tex. Feb. 7, 2020)

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Department of Criminal Justice (“Department”) retained immunity for hitting an inmate with a tear-gas shell.

Two groups of inmates were threatening each other in  The Pam Lychner State Jail.  The groups totaled approximately thirty (30) inmates. After giving orders to cease hostilities for almost an hour, which were ignored, Department officials ordered a guard to fire tear-gas (including a skat shell) at the groups.  A “skat shell” launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters. The shell hit Rangel, injuring him. Rangel sued.  The Department conducted an internal use-of-force review that “revealed several mistakes” as to how the incident was handled, noting that the skat shell was “designed for outdoor areas” only and “that chemical agents should have been administered through the door rather than in the middle of the housing area.” The official who authorized the use indoors was disciplined. The Department filed a plea to the jurisdiction, which was denied.

The Texas Supreme Court held the supervisor’s order to use the tear-gas gun was a “use of tangible personal property” under the TTCA. It was not the use by the individual guard following orders, but was a “use” by the supervisor who authorized an order the gun be put into play. The distinguishing factor is the order by the supervisor specifically to use the weapon, and not merely making the weapon available to the guard with no direction. [Comment: the Court spent multiple pages in the opinion on this distinction.] This also had an interplay with the court of appeals opinion on the intentional tort exceptions. However, the immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.” TEX. CIV. PRAC. & REM. CODE § 101.057(1). Rangel argued that the circumstances did not constitute a riot or there was a fact issue as to whether a riot existed. Using the plain and ordinary meaning of the term “riot” also includes how the term is used in other statutes, including the Penal Code. The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.” TEX. PENAL CODE § 42.02(a). While not identical, that definition is in line with the ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events but also the immediate danger.  As a result, the undisputed facts of the case constitute a riot as a matter of law. As a result, no waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Opinion by Justice Lehrmann.  Docket page found here.

Trial court’s denial of plea after evidentiary hearing was proper given the trial court decides disputed facts unrelated to merits of underlying claims

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City of San Antonio v. Pedro J. Arciniega, 04-19-00467-CV, (Tex. App – San Antonio, Jan 15, 2020)

This is an employment discrimination case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Arciniega sued the City alleging a claim for age discrimination after his employment was terminated. The City filed a plea to the jurisdiction asserting Arciniega failed to timely file his administrative complaint with the Texas Workforce Commission within 180 days after the date he was terminated. Arciniega asserted he filed it within 180 days after receiving the  City’s letter notifying him of his termination. When the hearing was held on the plea the City asserted it should be an evidentiary hearing on exactly when Arciniega received notice and Arciniegra’s attorney asserted his affidavit was sufficient to create a fact issue. The City’s attorney responded the trial court was required to hear evidence and resolve fact issues regarding jurisdiction when the challenged jurisdictional facts are not intertwined with the merits of the case.  The court allowed an evidentiary hearing at which witnesses were presented. After the testimony, the court denied the plea.

Legally, the 180-day period “begins when the employee is informed of the allegedly discriminatory employment decision.” A trial court “must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.”  When a defendant asserts and supports with evidence that the trial court lacks subject matter jurisdiction and the facts underlying the merits and subject matter jurisdiction are intertwined, a plaintiff is only required to show that there is a disputed material fact regarding the jurisdictional issue. A different standard applies, however, when a jurisdictional issue is not intertwined with the merits of a plaintiff’s claim. In that situation, “disputed fact issues are resolved by the court, not the jury.” Based on the applicable standard of a review the court found that the denial of the plea, was an implicit finding Arciniega timely filed his administrative complaint with the TWC.  Viewing the evidence in the light most favorable to the trial court’s finding, Arciniega’s testimony supported that finding. As a result, the plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Alvarez, Rios, and Watkins. Memorandum Opinion by Justice Rios. Docket page with attorney information found here.

Knowledge of a hypothetical hazard is insufficient to waive immunity under the TTCA for premise defects says 1st Court of Appeals

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The City of Houston v. Bobby Terry, 01-19-00197-CV (Tex. App. – Houston [1st Dist.], Jan. 23, 2020).

This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the  City. Terry was employed by a contractor at the time, but he was accompanied by a City employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power.  However, when Terry touched the lightbulb which needed replacing 300 feet up the tower, he was shocked. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because (1) power immediately stops running to the tower when the control box’s faceplate is removed and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence existed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premise defects. The City filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premise defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The Tort Claims Act’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premise defect theory, the City only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premise defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premise defect analysis. Under a premise defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off.  Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Lloyd, Justice Goodman, and Justice Landau.  Memorandum opinion by Justice Goodman. The docket page with attorney information can be found here.

Fort Worth Court says under premise defect claim plaintiff paid for use of the property even though she was using public sidewalk

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The City of Fort Worth, Texas v. Dianne Posey, 02-19-00351-CV, (Tex. App – Fort Worth, Jan. 16, 2020)

This is a premise liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (“WRMC”). Posey asserts she paid for entry to the  Coliseum. The City asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the City.  After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee.  The City filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the City appealed.

If Posey was a licensee, she must show that the City had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the City should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the City. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the City to rent the premises. However, the City asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the City that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the City’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Birdwell, Bassel, and Wallach. Opinion by Justice Birdwell. Docket page with attorney information found here.

Fort Worth Court of Appeals holds no waiver of immunity for declaratory judgment relief against county for competitive bidding violation

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Tarrant County, Texas v. Jeffrey D. Lerner, 02-19-00330-CV, (Tex. App – Fort Worth, Jan. 9, 2020)

This is a declaratory judgment/immunity case where the Fort Worth Court of Appeals held the County retained immunity for declaratory claims alleging violations of the competitive bidding statute.

The County had a contract with Dispute Resolution Services of North Texas (DRS) to manage the County’s alternative dispute-resolution services and was valued at over $400,000 per year. When renewing the contract, Tarrant County did not seek competitive bids for the contract. A competitor, Lerner, sued asserting after the last renewal the contract was invalid due to the lack of bidding. The County filed a plea to the jurisdiction which was denied.

The immunity waiver contained in the competitive bidding statute is specific and narrowly drawn – “Any property tax paying citizen of the county may enjoin performance under a contract made by a county in violation of [the Act].” Tex. Loc. Gov’t Code Ann. § 262.033. The court held the Legislature intended to waive immunity for injunctive-relief claims arising from violations of the statute. However, that does not waive immunity for attorney’s fees or any other form of relief. As a result, the court found the County retained immunity for Lerner’s declaratory judgment claims. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Gabriel, and Kerr. Memorandum Opinion by Justice Gabriel. Docket page with attorney information found here.

No waiver of immunity when non-profit sues to invalidate transfer of real property to city

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City of Houston and Keith W. Wade v. Hope for Families, Inc, 01-18-00795-CV, (Tex. App – Houston [1st Dist.], Jan. 9, 2020)

This is a governmental immunity case where the First  Court of Appeals held the contracting non-profit did not establish a waiver of immunity.

Hope for Families, Inc. (HFF) acquired the property for a community development project financed by the City which fell through.  HFF negotiated a transfer of the property to the City in exchange for debt forgiveness. HFF later sued to invalidate the transfer alleging the City’s negotiator, Wade, committed fraud when negotiating. The City filed a plea to the jurisdiction which was denied and the City appealed.

HFF asserts “A corporation may convey real property of the corporation when authorized by appropriate resolution of the board of directors or members.” Tex. Bus. Org. Code § 22.255, which it did not do. However, that provision does not grant HFF the right to sue to invalidate a transfer and does not waive immunity. HFF also sued Wade as an individual. While Wade is immune individually (as fraud is an intentional tort), the court held HFF should have the opportunity to replead an ultra vires claim.

If you would like to read this opinion click here. Panel consists of Justices Keys, Kelly, and Goodman.  Memorandum Opinion by Justice Goodman. Docket page with attorney information found here.

El Paso Court of Appeals holds concrete barrier and canal at end of roadway is a special defect

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City of El Paso, Texas v. Albert Lopez and Lexby Lopez, 08-19-00056-CV, (Tex. App – El Paso, Dec. 12, 2019)

This is a Texas Tort Claims Act (“TTCA”) case where the El Paso Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Plaintiff Lopez was traveling on his motorcycle at night when the roadway ended with a concrete barrier and canal. There were neither road signs nor any other type of warnings or lighting. Lopez struck the barrier and was killed. The police investigation report noted “the driver . . . failed to stop for the end of the street or roadway and crashed his bike into the canal.” A nearby resident also gave a statement that “there are a lot of cars that crash into the canal” because “[t]here are no warning signs to let you know that the street ends so when people come out the bars they wind up crashing at the canal.”  The investigation listed “lack of signs and illumination” as factors in causing the accident.  Lopez’s family brought a wrongful death claim against the City. The City filed a plea to the jurisdiction, which was denied.

The Plaintiffs failed to provide statutory notice of the accident but asserted the City had actual notice of its fault. Citing to the recent Texas Supreme Court case in Worsdale v. City of Killeen, 578 S.W.3d 57 (Tex. 2019), the court held the “critical inquiry is the governmental unit’s actual anticipation of an alleged claim rather than subjective confirmation of its actual liability.” After reviewing the record the court held the  City had actual notice of the claim under the TTCA. Next, the court analyzed whether the concrete barrier was a special defect. Both the canal and the concrete barrier were located on the roadway’s path, neither of which were visible in the dark to ordinary motorists. As a result, the court determined it was a special defect and the plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley, Justices Rodriguez and Palafox. Opinion by Justice Birdwell. The attorneys listed for the Plaintiffs are Ramon King Jr. and Lloyd Robles.  The attorney listed for the City is Anelisa Benavides.

4th Court of Appeals holds city vendor’s fair maybe proprietary function so trial court properly denied plea to the jurisdiction

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City of Helotes v. Jean Marie Page, 04-19-00437-CV, (Tex. App – San Antonio, Dec. 18, 2019)

This is an interlocutory appeal from the denial of the City’s plea to the jurisdiction in which San Antonio Court of Appeals held the Plaintiff’s injuries were caused during the performance of a potential proprietary function.

A City employee dropped a table while removing it from a parked golf cart. The table allegedly struck the accelerator on the cart, propelling it forward and striking Plaintiff Page. The accident occurred when the City employee was setting up for an event called the “MarketPlace at Old Town Helotes” and is a vendor’s fair where the City rents booths to vendors who sell merchandise and food. The MarketPlace is held on public streets in “Old Town Helotes,” and the streets are closed to traffic. The MarketPlace is sponsored, supervised, regulated, operated, and managed by the City. Page sued the City.  The City filed a plea to the jurisdiction, which was denied.

The Texas Tort Claims Act  defines proprietary functions as “those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality.” Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(b). Proprietary functions are “usually activities ‘that can be, and often are, provided by private persons.’”  Citing to  Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) the court of appeals noted it was a factually specific analysis as to whether an activity is proprietary or governmental. A city’s proprietary functions “will often benefit some nonresidents,” but in determining whether the MarketPlace was intended to benefit the general public or the City’s residents, courts focus on whether the activity “primarily benefits one or the other.” The facts demonstrated the primary objective was to assist local businesses by generating community involvement in the Old Town Helotes area which undisputedly “raised funds for the City’s budget.” The revenues were recorded in the MarketPlace budget, and any profits could remain in the MarketPlace line item or be used for other City departments. The City did not provide any evidence the event was necessary for City operations. As a result, “some” evidence exists the MarketPlace may be proprietary.  As a result, the pleadings indicate jurisdiction and the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justice Alvarez, Rios, and Rodriguez.  Memorandum Opinion by Justice Alvarez. Docket page with attorney information found here.

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

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

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

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

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

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

Austin Court of Appeals holds Austin’s short-term rental regulations unconstitutional (assembly clause also declared fundamental right entitled to strict scrutiny)

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Ahmad Zaatari v City of Austin, 03-17-00812-CV (Tex. App. —  Austin, Nov. 27, 2019).

This is a dispute regarding the City of Austin’s regulation on short-term rental properties. The Austin Court of Appeals reversed-in-part and affirmed-in-part the City’s plea to the jurisdiction. [Comment: This is a 43-page opinion and 18-page dissent. So, the summary is a bit longer than normal]

In 2012, Austin adopted an ordinance amending its zoning and land-development codes to regulate Austinites’ ability to rent their properties as short-term rentals.  Several other amendments occurred at different times adjusting the definitions and scope of the codes until, in 2016, Property Owners sued the City for declaratory and injunctive relief to declare the regulations unconstitutional. The Property Owners (which also included the State of Texas as a party) moved for summary judgment while the City filed a plea to the jurisdiction and a no-evidence motion for summary judgment. The trial court denied the Property Owner’s MSJ, denied the City’s plea, but granted the City’s summary judgment.  Everyone appealed.

The City’s plea to the jurisdiction challenges the State’s standing to intervene in this dispute, the Property Owners’ standing to bring claims on behalf of tenants, and the ripeness of the underlying claims. The court held  the State’s standing to intervene in this matter is  unambiguously conferred by the Uniform Declaratory Judgment Act which states when the validity of a statute or ordinance is brought, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. Tex. Civ. Prac. & Rem. Code § 37.006(b).  The court next held the underlying matters were ripe because some provisions of the 2016 ordinance took effect immediately, while others were not effective until 2022. Facial challenges to ordinances are “ripe upon enactment because at that moment the ‘permissible uses of the property [were] known to a reasonable degree of certainty.’” The court held  the City’s alleged constitutional overreach itself is an injury from which the Property Owners and the State seek relief.  Further, governmental immunity does not shield the City from viable claims for relief from unconstitutional acts. As a result, the plea was properly denied.

The court next determined the trial court erred in several evidentiary rulings, which mainly deal with the public dispute over short-term rentals. The State and the Property Owners filed traditional motions for summary judgment on their claims regarding the constitutionality of the ordinance. The Texas Constitution prohibits retroactive laws. The State contends that the ordinance provision terminating all type-2 operating licenses is retroactive because it “tak[es] away th[e] fundamental and settled property right” to lease one’s real estate under the most desirable terms. While disagreeing on the effect, the City conceded the ordinance retroactively cancels existing leases. Not all retroactive laws are unconstitutional. The Court held the regulation operates to eliminate well-established and settled property rights that existed before the ordinance’s adoption.  Upon reviewing the record the court held the City made no findings to justify the ordinance’s ban on type-2 rentals and its stated public interest was slight. Nothing in the record demonstrates this ban would address or prevent any listed concerns, including preventing strangers in the neighborhood, noise complaints, and illegal parking. In fact, many of the concerns cited by the City are the types of problems that can be and already are prohibited by state law or by City ordinances banning such practices. Further, for four years the City did not issue a single citation to a licensed short-term rental owner or guest for violating the City’s noise, trash, or parking ordinances. The purported public interest served by the ordinance’s ban on type-2 short-term rentals cannot be considered compelling. Private property ownership is a fundamental right. The ability to lease property is a fundamental privilege of property ownership. Granted, the right to lease property for a profit can be subject to restriction or regulation under certain circumstances, but the right to lease is nevertheless plainly an established one.  Based on the practices performed in Austin over the years, short-term rentals have a settled interest and place in the City. The City’s ordinance eliminates the right to rent property short term if the property owner does not occupy the property. As a result, the regulations are unconstitutionally retroactive.

The court then addressed the Property Owner’s claim the regulations violated their right to assembly under the Texas Constitution. After a lengthy analysis, the court held the Texas Constitution’s assembly clause is not limited to protecting only petition-related assemblies and the judicially created “right of association” does not subsume the Texas Constitution’s assembly clause in its entirety.  The right is a “fundamental right” for constitutional analysis purposes and must be examined under a strict scrutiny analysis. The regulation sections challenged limited the number of persons at a rental at any one time, the hours of the day a rental could be used,  number of permitted leaseholders, and various other congregation related activities. The City already has various nuisance ordinances in place to address the negative effects of short-term rentals on neighbors. As a result, the City failed to establish a compelling interest that justifies a different ordinance which is not narrowly tailored. The City has not provided any evidence of a serious burden on neighboring properties sufficient to justify the additional regulations, which therefore violate the assembly clause of the Texas Constitution.

The court reversed that part of the district court’s judgment granting the City’s no-evidence motion for summary judgment and denying the Property Owners’ and the State’s motions for summary judgment. It rendered judgment declaring specific sections of the City Code void.

Justice Kelly  dissented asserting 1) the sections were not unconstitutionally retroactive (with analysis), 2) the Assembly Clause assures Texans the fundamental right to peaceably gather for purposes of meaningful civic discourse without fear of retribution – not to have short-term rentals (which are assembly-neutral zoning regulations that have a rational basis), 3) loud noise, obstructing infrastructure, flouting law enforcement, public disturbances, threats to public safety- all these may make an assembly non-peaceable and can be regulated, and 4) the majority opinion is also out of step with Texas “fundamental right” precedent (i.e. declaring rights fundamental, and thus beyond ordinary democratic give-and-take, is a weighty matter, unjustified in this case).

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Goodwin and Kelly.  Opinion by Chief Justice Rose.  Dissenting Opinion by Justice Kelly found here. Docket page with attorney information found here.

No waiver of immunity for city contract to install sewer lines on property says 4th Court of Appeals

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Twanda Brown v. City of Ingram04-1900508-CV (Tex. App. —  San Antonio, Nov. 20, 2019).  

In this suit, the San Antonio Court of Appeals affirmed the granting of the City’s plea to the jurisdiction related to counterclaims regarding utility services.  

The City of Ingram (“the City”) sued Brown and eight other defendants, seekingdeclaratory judgment that its ordinances regarding penalties and permits for utilities and wastewater are “valid and reasonable exercises of the City’s police powers.” Brown answered the City’s suit and asserted a counterclaim for breach of contract, alleging the City “breached its Contract for Wastewater Services by knowingly permitting an unqualified, unlicensed subcontractor” to connect her property to the City’s sewer system. Brown alleged the subcontractor’s negligence “sever[ed] a gas line and caus[ed] damages to Brown and her property.” The City filed a plea to the jurisdiction which was granted.  Brown appealed.  

The Texas Tort Claims Act makes sanitation, water, and sewer services governmental functions, thereby entitling the City to immunity absent a waiver. The City’s actions of connecting residents to the city’s sewer system is a governmental functionImmunity is waived for breach of contract claims for goods or services provided to the entityBrown’s pleadings allege the purported contract was an agreement to provide goods or services to Brown (i.e. construction and installation of service lines), not the other way around. Because any purported contract does not involve the provision of goods or services to the City, it is not a “contract subject to” the waiver in Texas Local Government Code chapter 271 subchapter I.  

Several days after the trial court granted the plea to the jurisdiction, the City filed a motion to strike an affidavit submitted by the City on the basis that counsel for the City learned the affiant made a mistake as to the location of a photograph.  Brown filed an objection but also sought in the alternative, the trial court re-open the hearing. The court noted the record does not reflect whether the trial court ruled on either. However, the court held the issue is irrelevant to the ability to rule on the appeal as it does not change the analysis of the type of contract involved.  Finally, the court denied the City’s request for sanctions as they do not believe the claims “lacked any reasonable basis in law.”   

If you would like to read this opinion click hereThe panel consists of Chief Justice Marion, and Justices Alvarez and Chapa. Opinion by Chief Justice Marion. The attorney for Brown is listed as Roger Gordon.  The attorneys listed for the City are Charles E. ZechScott Micheal Tschirhart  and Llse D. Bailey 

Property owner did not allege viable constitutional claim after County granted neighbor development permit

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Stephen Sakonchick II v. Travis County, 03-19-00323-CV (Tex. App. – Austin Oct. 30, 2019).

This is a constitutional challenge to a construction permit where the Austin Court of Appeals affirmed the granting of the County’s plea to the jurisdiction.

Sakonchick owned a home on in a neighborhood known as Bee Creek Hills, in Travis County and the City of Austin’s extraterritorial jurisdiction (“ETJ”). Bee Creek’s only means of vehicular ingress and egress is along Canon Wren Drive.  The Overlook is a real estate development featuring a four-story mixed-use office building on the corner of Bee Cave Road and Canon Wren Drive. The Overlook’s owners applied for a basic development permit to construct a parking garage and a second driveway, which was granted. Prior to it being granted, Sakonchick began calling Travis County to voice his objections. Unhappy that Travis County failed to address his concerns before issuing the permit, Sakonchick sued Travis County and The Overlook’s owners pleading various theories and seeking to enjoin the construction of the garage.  Essentially, Sakonchick claims Travis County denied him due process when it issued the basic development permit without first affording him notice or hearing to object. Travis County filed a plea to the jurisdiction, which the district court sustained after an evidentiary hearing.

As an ostensible property interest, Sakonchick alleges an “ownership of an appurtenant easement” in “the Canon Wren Drive right of way.” But a vested property right is “more than a unilateral expectation” or an “abstract need or desire” on the part of the individual asserting the right. Instead, a vested property right exists when its claimant has “a legitimate claim of entitlement” to the right asserted. He and his neighbors do not, however, have an exclusive right to use Canon Wren Drive to access the neighborhood without encountering traffic or any other inconvenience typically associated with suburban life. Sakonchick did not produce any evidence the proposed parking garage and driveway will jeopardize his ability to access the real property he owns in Bee Creek. Nor has he alleged or produced evidence that the proposed structures will encroach on private property or restrict use of the residential real estate in the Bee Creek neighborhood.  As a result, he has not pled a viable constitutional theory against the County. Further, the record affirmatively negates the existence of jurisdiction over Sakonchick’s claim against Travis County, so Sakonchick is not entitled to replead.  However, the court did modify the dismissal noting it was dismissed “without prejudice” as a dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Kelly and Smith.  Memorandum opinion by Justice Smith. Sakonchick appeared pro se. the attorneys listed for Travis County are Mr. Brian P. Casey, Mr. Patrick M. Kelly, and Ms. Cynthia Wilson Veidt.

Even though inmate asserted eye-injury due to laser was accidental, Fort Worth Court of Appeals holds pleadings actually assert battery – no waiver of immunity exists

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Tarrant County, Texas v. Tony Lee Green, 02-19-00159-CV (Tex. App. – Fort Worth, Oct. 24, 2019)

This is a Texas Tort Claims Act (“TTCA”) case where the Fort Worth Court of Appeals reversed the denial of the County’s plea to the jurisdiction based on an intentional tort.

While Green was a jail inmate, he asserts Corporal Davis at the jail pointed a temperature gun which utilized a laser for measurements at his left eye, causing injury.   Corporal Davis admits to using a laser temperature gun, but denied the laser impacting Green. Green testified that he does not believe Davis hit him with the laser intentionally.  However, he testified Davis pointed the temperature gun at him as a result of Green telling a joke about Davis moments before. The County filed a plea to the jurisdiction asserting Green alleged an intentional tort, even though Green disclaimed the injury was performed intentionally. The trial court denied the plea and the  County appealed.

Although the specific intent to inflict injury is unquestionably part of some intentional torts, a specific intent to injure is not an essential element of a battery, which does not require physical injury and which can involve a harmful or offensive contact intended to help or please the plaintiff. The court noted that accidental injuries can sometimes result from an intentional tort.  The court drew a distinction between criminal and civil analysis for “intentional” conduct regarding battery. Green’s allegations constitute a common-law battery claim because the contact—either offensive or provocative—was an intentional act made in response to Green’s own provocative statement. As battery is an intentional tort, no waiver of immunity exists. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Bassel and Justice Wallach. Memorandum opinion by Chief Justice Sudderth. The attorneys listed for Green are Scott H. Palmer and Niles Illich.  The attorneys listed for the County are Christopher Taylor and Kimberly Colliet Wesley.