Eight Amendment Excessive Fine Prohibition applicable to the states through 14th Amendment says U.S. Supreme Court



Timbs v Indiana, 17-1091 (U.S. February 20, 2019).

Tyson Timbs plead guilty to controlled substance and conspiracy to commit theft. At the time of his  arrest, the police seized a vehicle Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of the vehicle, which value was four times the maximum monetary fine for the offenses. The Indiana Supreme Court held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions.

The Court held the prohibition in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.”  Indiana argued the Clause does not apply to its use of civil in rem forfeitures because the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. However, the Court noted the trial court did not address the Clause’s application to civil in rem forfeitures and the Indiana Supreme Court only held the Clause was inapplicable to the states through the 14th Amendment.  The Court held the 14th Amendment makes applicable the Excessive Fines Clause, and the Court declined to separate out whether it was for criminal or civil forfeiture purposes.

If you would like to read this opinion click here. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

Texas Supreme Court holds plaintiff in red-light challenge lawsuit was required to exhaust administrative remedies before filing for injunctive relief


Garcia v City of Willis, et al., 17-0713 (Tex. May 3, 2019)

In this constitutional challenge to red-light camera case, the Texas Supreme Court held the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim.

Luis Garcia sued the City of Willis on behalf of himself and “others similarly situated” who paid a civil penalty for violating a city ordinance for red-light infractions caught on camera. He sought the invalidation of the ordinance, a refund, or a takings claim. The City filed a plea to the jurisdiction, which was denied by the trial court, but granted by the court of appeals. On appeal to the Supreme Court, the State filed an amicus brief, arguing additional authority in support of the City.

While the City did not initially challenge Garcia’s standing to bring suit, the State’s amicus brief raised the issue, and the Court felt it was required to address that first. After receiving notice from the City of his red-light violation, Garcia paid the requisite civil fine. He has no outstanding fines and does not assert that he plans to violate red-light laws in the future. And for standing purposes, we “assume that [plaintiffs] will conduct their activities within the law,” barring some stated intent otherwise. Because no pending charges exist, Garcia lacks standing for prospective injunctive relief and could not be a class member of others similarly situated who have not paid the fine.  However, he does have standing to seek a refund of his past payment. In this context, immunity is waived only if Garcia paid the fine under duress.  Here, Garcia chose to voluntarily pay a fine and forgo administrative remedies that would have entitled him to an automatic stay of the enforcement of his fine under TEX. TRANSP. CODE § 707.014(a).  Because Garcia could have invoked this automatic reprieve from payment and challenged the notice of violation administratively — but chose not to — he cannot now claim he paid his fine under duress.  Therefore, the City maintains its immunity.

Garcia additionally argues the fine imposed on him amounts to an unconstitutional taking, because the underlying is unconstitutional and because the City failed to conduct the statutorily required engineering study.  He asserts he could not challenge the constitutionality of the fine in the administrative hearing. However, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments. As a result, he failed to exhaust his administrative remedies.

If you would like to read this opinion, click here.  Justice Brown delivered the opinion of the Court.  The docket page with attorney information can be found here.

December 2018 Condensed Summaries

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.

City not liable for takings claim because of alleged failure to enforce ordinances against neighboring property owner/developer


City of Mason v. William Robin Lee, et al.  04-18-00275-CV (Tex. App. – San Antonio, Nov. 7, 2018).

This is an interlocutory appeal in a regulatory takings case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the takings claims.

The Zeschs’ trust asserted they owned property adjacent to or downhill from property owned by Tyler and Reyeses. The City approved a minor plat and Reyeses began constructing a single-family residence. The Zeschs assert the development caused increase water runoff damaging the property. Additionally, the Zeschs assert the construction generated nuisance level noise and dust. They assert the City committed a regulatory taking by approving the plat, then refusing to enforce various City ordinances against Reyeses. The City filed a plea to the jurisdiction, which was denied. The City took this interlocutory appeal.

The court first noted a justiciable controversy still exists even though the Zeschs settled with Tyler and Reyes and now own the property since a question remains as to whether the Zeschs’ property was damaged due to the City’s actions. Next, to state a valid takings claim, a plaintiff generally must allege: (1) an intentional governmental act; (2) that resulted in his property being taken; (3) for public use. The crux of the Zeschs claims is that the City failed to impose applicable regulations to the subdivision and to the property owned by the Reyeses. The Texas Supreme Court and the Fourth Court have recognized “the law does not recognize takings liability for a failure to” act. A municipality’s failure to enforce applicable zoning ordinances and special permit restrictions does not constitute a regulatory taking.  The court also cited to precedent noting that if the government’s alleged affirmative conduct is nothing beyond allowing private developers to use their property as they wish, the more appropriate remedy is a claim against the private developers rather than a novel taking claim against the government.  Interestingly, in a footnote, the court held that the Penn Central analysis (applicable when a regulation unreasonably interferes with a property owner’s use and enjoyment of the property) does not apply in this type of case because the Zeschs were not complaining of regulations applied to them, but of the lack of regulations applied to others. No intentional conduct occurred so the plea should have been granted.

If you would like to read this opinion click here. Justice Martinez, Justice Chapa and Justice Rios.  Memorandum Opinion by Justice Rios.  The docket page with attorney information can be found here.

Billboard owner unable to establish waiver of immunity in suit against village

Triple BB, LLC v. The Village of Briarcliff, Texas, 03-17-00149-CV (Tex. App. – Austin, Aug. 15, 2018).

This is an appeal from the granting of the Village of Briarcliff’s plea to the jurisdiction in a case involving a billboard. The Austin Court of Appeals affirmed the dismissal.

The local marina had a cliff-side billboard which was located on Village property. In 2002, the Village entered into a contract with the Marina owners (which became Triple BB) for a separate easement allowing access to a raw water line, in exchange for allowing the billboard. Several years later, the City conveyed the property on which the billboard is located to a third party, who demanded the Marina owners remove the billboard. Triple BB sued the third-party and then added the Village under declaratory judgment, breach of contract, and inverse condemnation theories. The Village filed a plea to the jurisdiction which the trial court granted. Triple BB appealed.

The court first, briefly, addressed the proprietary vs governmental function distinction and held the contract at issue was primarily to allow water and sewer service, with the billboard being merely a form of consideration. As a result, it was a governmental function. Next, as a general rule, when the government “is made a party defendant to a suit for land,” immunity bars the suit absent legislative consent. No waiver of immunity exists to establish a prescriptive easement against the Village. Next, Triple BB argues that the grant of an easement alone qualifies as a contract for service under Chapter 271. However, Chapter 271 does not apply unless the governmental entity has a right under a contract to receive a service. By conveying an easement, the previous owners granted the Village a legal right to use their land in a certain way. They made no promise to perform an act or provide anything, therefore it is not a service and immunity is not waived. As to Triple BB’s declaratory judgment claim, except for a narrow waiver of immunity for claims challenging the validity of ordinances or statutes the UDJA generally does not waive immunity. Finally, to plead a viable inverse condemnation claim, “a plaintiff must allege an intentional government act that resulted in the uncompensated taking of private property” for public use. Triple BB’s factual allegations, taken as true, do not include an intentional act by the Village which resulted in the taking of Triple BB’s land. It merely conveyed the land to a third party. As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Justice Puryear, Justice Field and Justice Bourland. Memorandum Opinion by Justice Bourland. The attorney listed for Triple BB is Bradley B. Clark.  The attorney listed for the Village is Kenton P. Campbell.

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


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

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

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

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

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

State trial court lacks jurisdiction over property dispute when U.S. government has a potential interest in the property

Rio Grande City Consolidated Independent School District v. City of Rio Grande, et al., 04-17-00346-CV (Tex. App. – San Antonio, June 27, 2018)

In this property dispute, the San Antonio Court of Appeals affirmed-in-part and reversed-in-part a trial court’s order granting the City’s plea to the jurisdiction.

The Rio Grande City Consolidated Independent School District (“District”) asserts it owns a 0.64 acre tract of land. It sued the City of Rio Grande (“City”) for trespass to try title and declaratory judgment. The U.S. government filed an intervention to preserve its interest in the property.  The City filed a plea/MSJ which the trial court granted. The District appealed.

Pursuant to 28 U.S.C. § 1346(f), federal district courts have exclusive original jurisdiction in trespass to try title claims where the U.S. government has an interest in property. As a result, the state trial court lacked jurisdiction to hear the title claim. The school district amended its pleading after the plea was filed to allege an unconstitutional taking. The plea/MSJ was not amended. Because the record shows the school district’s unconstitutional taking claim was not addressed in the plea to the jurisdiction/summary judgment motion, the trial court erred in disposing of this claim.

If you would like to read this opinion, click here.  Panel consists of Justice Angelini, Justice Barnard, and Justice Martinez. Memorandum Opinion by Justice Angelini.  The docket page with attorney information is found here.

Zoning amendment was not retroactive and property owner had no vested interest in perpetual use of his property for a specific purpose says Dallas Court of Appeals


Hinga Mbogo, et al. v. City of Dallas, et al. 05-17-00879-CV (Tex. App. – Dallas, June 19, 2018)

This is an appeal from an order granting the City Defendants’ plea to the jurisdiction in a constitutional challenge to zoning laws. The Dallas Court of Appeals affirmed the granting of the plea.

Hinga leased land and opened a general repair shop on Ross Avenue in Dallas, Texas, in 1986. At that time, the City’s zoning ordinances allowed automobile-related businesses on Ross Avenue. After performing a study which found automobile-repair shops were a concern in the area based on the connected roads and services in the area, the City amended its zoning ordinance in 1988 prohibiting such uses. At that time, Hinga was fully aware that continuing his business became a “nonconforming use.” In 1991, Hinga purchased the property, expanded and upgraded knowing the property was nonconforming. In 2005 the City again amended the zoning ordinance and codified specific provisions related to non-conforming uses and provided deadlines. A property owner could appeal to the board of adjustment to extend deadlines to comply with the requirements. The BOA gave Hinga a new compliance date of April 13, 2013. Hinga then received a zoning change and SUP which expired in 2015. Hinga applied for a new SUP in February 2016, which was denied. The City filed suit seeking a permanent injunction to prevent operations and sought fines of $1,000 per day. Hinga counterclaimed and brought in various City officials. The City defendants filed a plea to the jurisdiction, which was granted. Hinga appealed.

Hinga argues the City’s ordinances, as applied to him, are unconstitutionally retroactive. A retroactive law is one that extends to matters that occurred in the past. Hinga asserted in 2005 and 2013 he had no notice the City would at some point make his use illegal. However, a law is not retroactive because it upsets expectations based in prior law.  Further, there are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses. In 2005 the City’s ordinance change allowed the owner of a nonconforming use to apply for a later compliance date if the owner would not be able to recover his investment in the use by the designated conformance date. The ordinance did not change any use but rather, it prospectively altered a property owner’s future use of the property. The 2013 ordinance likewise set a deadline for when it expired. As a result, the ordinances are not retroactive. Additionally, the court noted not all retroactive laws are unconstitutional. Here, any interest that Hinga had in the use of his property is not “firmly vested.” There is no bright-line rule and, generally speaking, an individual has no protected property interest in the continued use of his property for a particular purpose. The process provided likewise did not deprive Hinga of due process or single him out in any respect. The City allowed Hinga to run a business from 1991 through 2015 as either a nonconforming use or under a SUP; however, his use became illegal once his SUP expired. Hinga’s position under his takings argument appears to be that any restriction on his desired use of the property results in unconstitutional damage or destruction to his property. That is simply not the case as he had no vested right to perpetual, guaranteed use of his property in a specific way. As a result the plea was properly granted.

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

Tenant’s lease language meant it did not have standing in condemnation suit


Pizza Hut of America, LLC v. Houston Community College System, 01-17-00101-CV (Tex. App. – Houston [1st Dist.], December 19, 2017).

This is a condemnation suit where the central issue is a tenant’s standing in a condemnation suit and claim for a pro rata share of the award. The First Court of Appeals held the tenant had no standing.

Pizza Hut was a tenant of the Woodridge Plaza Shopping Center when the Houston Community College  System (“HCCS”) condemned the property. As part of the condemnation proceedings, a condemnation award of $427,100 was designated to be paid to all of Woodridge Plaza’s tenants, and Pizza Hut sought $7,100 as its pro rata share.  The trial court concluded, based on language in Pizza Hut’s lease, it had no standing and was not entitled to any of the award. Pizza Hut appealed.

The Pizza Hut lease with the prior owners had a condemnation clause noting “[t]he Condemnation Award shall belong to the Landlord, however, Tenant shall be entitled to the Unamortized Cost of Tenant Improvements, plus Tenant’s relocation expenses as determined by the condemning entity or court of law.”  After condemnation, Pizza Hut continued operating its business at the Woodridge Plaza location—using its established equipment and improvements—at a profit and without interruption of physical impairment by the condemnation. In April 2016, while the condemnation proceedings were still pending, Pizza Hut sold all ninety of its Houston locations, including the Woodridge Plaza location. The sale price included improvements to the Woodridge Plaza location but not the leasehold interest. A lessee generally has standing in condemnation proceedings and is entitled to share in a condemnation award when part of its leasehold interest is lost by condemnation. However, a tenant may waive this right in the lease or elsewhere. By the definition in the lease, Pizza Hutt suffered no impairment. The court rejected Pizza Hutt’s argument that the uncertainty created by the condemnation constituted an impairment. It operated with no change in profit and did not establish the “uncertainty” had any impact on its operation. As a result, it lacked standing to sustain a claim against HCCS.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack
Justice, Justice Keyes and Justice Caughey. Memorandum Opinion by Justice Keyes.

Texas Supreme Court rules court of appeals has interlocutory jurisdiction for denied MSJ even though plea was denied months earlier


City of Magnolia 4A Economic Development Corporation and City of Magnolia 4B Community Development Corporation v. David Smedley, 16-0718 (Tex. October 27, 2017).

This is a flooding case, however, the issue for the Supreme Court is a litigation procedural one. The Court of Appeals held that it did not have interlocutory jurisdiction over claims which were re-raised in a subsequent motion. However, the  Texas Supreme Court held the intermediary courts have interlocutory jurisdiction separately for each motion filed.

The underlying claims are Smedley sued the City and the economic development corporations and contracted entities alleging that the defendants caused the Smedley Property to flood and retain standing water, causing damages after they facilitated a Chicken Express going onto the lot next to his. The City was dismissed based on its plea to the jurisdiction. However, the EDCs filed their own pleas/Rule 91a motions which were partially denied. The EDCs later filed summary judgment motions, which were likewise denied. When the EDCs attempted to take an interlocutory appeal of the denial of the MSJ, the court of appeals stated the grounds were identical to those raised in the pleas. Therefore the court lacked interlocutory appeal jurisdiction under Tex. Civ. Prac. & Rem. Code §51.014. The EDCs filed a petition for review which the Supreme Court granted.

The crucial question is whether the twenty-day period to bring an interlocutory appeal ran from the trial court’s denial of the plea/91a motion or the date of denial of the MSJ. See TEX. R. APP. P. 26.1(b) (providing that a timely interlocutory appeal must be filed within twenty days after the challenged order was signed). The court of appeals held the proper trigger date was the denial of the plea. See case summary here. The Texas Supreme Court, citing its own prior precedence, noted that if an amended plea was merely a motion to reconsider, then the twenty-day clock did not reset.  City of Houston v. Estate of Jones, 388 S.W.3d 663 (Tex. 2012).  The Court noted it was compelling that the original plea was a pleadings challenge only and the later motion was an evidence-based motion.  The EDCs asserted that in light of the discovered evidence, there was no evidence as to the claims under the Water Code or Takings Clause, and that there was affirmative evidence the EDCs did not own or control the lot, preventing them from being able to provide injunctive relief.  The Court cautioned that the procedural mechanisms, alone, is not dispositive and a court must analyze the substance of the motions. However, after doing so, the Court held the EDCs MSJ cannot be considered a mere motion for reconsideration of the initial plea. As the MSJ was a distinct motion from the plea, the court of appeals had interlocutory jurisdiction to hear the appeal. It remanded the case back to the court of appeals for analysis.

If you would like to read this opinion click here. This is a per curiam opinion. The docket page with attorney information is found here.

Property Owner Rule entitled representative to testify as to value of damage to remainder of property after road expansion


The State of Texas v. Speedway Grapevine I, LLC, A Texas Limited Liability Company, and First Commercial Bank, N. A 02-16-00144-CV (Tex.App—Fort Worth, October 19, 2017)

This is a condemnation case where the Fort Worth Court of Appeals affirmed the jury verdict condemnation award, including the admission of valuation evidence by the owner’s representative.

Speedway owned real property which included a car wash and an express lube on a specific lot. In connection with a road-widening improvement project the State condemned a portion of the frontage. However, Speedway asserted the condemnation affected the ability to operate the two businesses.  The State appealed the commissioner’s award but the jury awarded more than the commissioner’s award. The State’s expert opined Speedway’s remainder property had sustained damages in the amount of $0, excluding a total cost to cure of $105,826.00.  Adding the value of the part condemned ($159,789.00), it opined Speedway was entitled to total compensation in the amount of $265,615.00. Speedway’s experts opined the remainder property suffered a total damage of $2,609,420.00. Adding the value of the part condemned to that figure, Speedway asserted it was entitled to compensation in the total amount of $2,748,822.00.  After a jury trial, the jury found the part condemned had a market value of $92,190.00 and that Speedway’s remainder property was damaged in the amount of $4,401,028.00. The State appealed.

The State first objected to Speedway’s appraisal expert, McRoberts. The State argued he speculated on post-condemnation nonconforming treatment, that Texas law did not recognize his income approach, and that he had improperly relied upon noncompensable impairment of access.  The trial court excluded McRoberts’s income approach but not his cost approach. It also permitted him to testify regarding internal traffic circulation difficulties, unsafe access, and nonconformance with zoning regulations.  Mr. High, Speedway’s representative as the owner, testified about his experience in the car wash industry, the reasons why Speedway located the car wash where it did, the market value of the whole property, problems with a cure plan devised for the State, and the viability of the car wash after the condemnation. The State acknowledges that a property owner may testify to the value of his property, as High did here, but it argued the owner’s valuation testimony must still meet the same requirements as any other opinion evidence.  The court rejected this argument in part. The Property Owner Rule “is an exception to the requirement that a witness must otherwise establish his qualifications to express an opinion on land values.” Based on the presumptions that an owner is familiar with his property and will know its value, the Rule accepts that a property owner is qualified to testify.  However, qualification is not the same as the basis of the opinion. The property owner “must [still] provide the factual basis on which his opinion rests.” But the burden is not difficult or complex. “Evidence of price paid, nearby sales, tax valuations, appraisals, online resources, and any other relevant factors may be offered to support the claim.” High’s testimony covered a range of topics that, taken together, provided some probative evidence to factually support his valuation opinion.  Such included his great level of experience in, and knowledge about, the car wash industry and the effects of such property reductions. The testimony was properly admitted. McRoberts testified that the condemnation had affected the property’s functionality so greatly that the property had experienced a change in its highest and best use to something like a small veterinary clinic or an office. McRoberts did not base his opinions on only his word, or on mere conjecture; he based it on the issues that began affecting Speedway’s property only after the condemnation—unsafe access, internal circulation, and zoning nonconformities.  McRoberts thus provided a reasoned basis to support his damage opinions, reinforced by well-established case law, logic, and mathematics.  The court held “[b]oiled down, the State’s argument is nothing more than an evidentiary sufficiency challenge improperly masquerading as an expert opinion admissibility issue. When the highest and best use of property is disputed, the jury is responsible for deciding which use is appropriate when it determines market value.”  Sufficient evidence exists in the record to support the jury’s verdict. As a result, the verdict is affirmed.

If you want to read this opinion click here. The panel consists of Justice Puryear Justices, Field, and Bourland. Justice Bill Meier delivered the opinion of the court. To see the docket page with the list of attorneys click here.

Town immune from claims to invalidate vote where no ordinance was actually adopted says Fort Worth Court of Appeals


Peter Schmitz, et al  v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, August 31, 2017).

This is an appeal from a final judgment against the Plaintiffs who attempted to force the Town to enforce its zoning laws against other property owners. The Fort Worth Court of Appeals affirmed the dismissal of the Town. However, the court reversed the dismissal of the other property owner.

In 2014 the Denton County Cowboy Church (“Church”) purchased property zoned single family residential under the Town of Ponder’s zoning ordinance.  The Church’s property is adjacent to the Plaintiffs’ property. According to Ponder’s comprehensive plan, the Plaintiffs’ properties are designated for future low-density residential zoning. In 2015 the Church began construction of an arena. The Town issued a building permit for an open arena. Plaintiffs sued the Church and Town of Ponder, seeking injunctions prohibiting the Church from continuing construction. They also brought claims under §1983 for due process, takings, and equal protection violations.   At this time the Town voted to amend the zoning code and issued a SUP to the Church, but did not pass an ordinance. The Town (and Church) filed a plea to the jurisdiction, which the trial court granted. The Plaintiffs appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity. The proper defendant in an ultra vires action is the official who allegedly acted without authority, not the governmental entity itself. The Plaintiffs did not sue any officials. The UDJA waives governmental immunity against claims that an ordinance, or an amendment to an ordinance, is invalid.  Plaintiffs claim they are challenging the amended ordinance so have jurisdiction. However, the record shows Ponder did not amend its zoning ordinance, it merely voted on motions to change the zoning classification. Open motions and votes are not ordinances and here the zoning ordinance was not changed. The Town’s vote to grant an SUP was not made by ordinance but did not have to be. Plaintiffs, therefore, are not able to challenge a non-existent ordinance and cannot show a waiver of immunity. The court also held that since the Texas Open Meetings Act and notice allegations also stem from the challenge to a non-existent ordinance, they likewise were properly dismissed. The Plaintiffs next assert the Town waived immunity by its own ordinance.  However, the court held that even if the Town had the authority to waive its own immunity, the language in their ordinance is not a clear and unambiguous waiver of immunity. It authorized a property owner to sue an offending property owner, not the Town. As to the §1983 analysis, claims based upon a government entity’s refusal or failure to enforce its own regulations do not equate to such claims.  The court held repleading would not change the lack of jurisdiction. The Town’s plea was properly granted.  The court errored by dismissing the Church.

If you would like to read the opinion click here. Panel includes Chief Justice Livingston, Justice Gabriel, and Justice Pittman.  The attorneys listed for the Plaintiffs are Gregory Sawko and Robert E. Hager.  The attorneys listed for the Town are Matthew Butler and John F. Boyle Jr.

State immune from suit for mineral interest relating back to Spanish land grant


Galan Family Trust v. State of Texas, et al, 03-15-00816-CV (Tex.App— Austin, February 24, 2017)

This is an inverse-condemnation/trespass-to-try-title case where the Austin Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

The Galan Family Trust (“Trust” or “Plaintiff”) sued the State of Texas for mineral interests the Trust asserts they own due to a 1767 Spanish land grant. A patent in favor of the Galan heirs was issued in 1852 by the Texas Legislature, but the patent was cancelled by the State of Texas in 1874. In this context, “patent” is an instrument by which the State conveys land to a private person. The State filed a plea to the jurisdiction and a Rule 91a motion to dismiss, asserting that the State is immune to trespass-to-try-title claims and, further, that the Trust’s claims are barred by limitations. The trial court dismissed the Trust’s suit and the Trust appealed.

The court first reaffirmed long-standing case law that governmental entities are immune from trespass-to-try-title claims. Additionally, while individual officials in their official capacities may not be immune from trespass-to-try-title claims, the Trust’s pleadings negate the right of possession.  This right is necessary to establish a trespass-to-try-title claim against an official. Once the State canceled the patent, the State became the titleholder. Further, the Trust did not sue for a takings claim until more than 140 years after the cancellation. This delay in filing far exceeds the ten-year limitations period established for takings claims. The State was only required to establish when the cause of action accrued to establish limitations, not to provide uncontroverted evidence of every element of the defense.  Given the elements for the statute of limitations defense are contained within the pleadings. And, when taken as true for purposes of the Rule 91a motion, the State established it is entitled to dismissal. The trial court’s order is affirmed.

If you would like to read this opinion click here. The Panel includes Chief Justice Rose, Justice Goodwin, and Justice Bourland. Chief Justice delivered the opinion of the court. To see the Representatives for the Appellant and Appellees click here.


City held to be acting both in a proprietary capacity and a governmental capacity involving lease for mineral interests says Dallas Court of Appeals


The City of Dallas v. Trinity East Energy, LLC, 05-16-00349-CV(Tex.App— Dallas, February 7, 2017)

This is an interlocutory appeal from the granting-in-part and denial-in-part of a plea to the jurisdiction involving an inverse condemnation claim for mineral interests. The Dallas Court of Appeals affirmed-in-part, reversed-in-part, and remanded.

The City was suffering a budgetary shortfall and decided to seek an additional source of revenue by leasing the minerals on City-owned property to a private party for developing the oil and gas. Trinity asserted, if it bid, it would need surface access to two City sites.  Trinity and the City entered into two leases for mineral interests. Afterwards, Trinity began the long process of preparing to drill, including geological and engineering tests, designing drill sites, roads, and pipelines, and multiple City meetings. Trinity sought permits to drill on the designated sites. However, in the spring of 2013 the Planning Commission voted to deny the applications. Trinity appealed to the City Council. But because the Planning Commission had denied the applications, the Council was required to override that denial by a vote of three-fourths of its members; the vote to approve received only a majority of the votes of the Council members. Consequently, the applications were denied. Later, the City passed new ordinances changing setback requirements and making the sites impossible for Trinity to use for drilling. The leases then expired.  Trinity sued. The City filed pleas to the jurisdiction in which it asserted it was immune from suit with regard to Trinity’s claims for breach of contract, tort, and declaratory relief, and that Trinity had not alleged a viable claim for inverse condemnation. Trinity responded that the City’s actions were proprietary for which immunity did not apply. The trial court granted parts and denied parts. Both parties appealed.

Citing the Texas Supreme Court’s expansion in Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016) of the proprietary-governmental dichotomy to contracts the Dallas Court of Appeals held the City was acting in its proprietary capacity. Mineral leases, even if on park or flood plains, are proprietary as to the ownership use or lease. Further, since immunity does not already exist, Chapter 271 of the Texas Local Government Code (waiving immunity for goods or services) does not apply.  The City was acting as a property owner as to the lease, however, the City was also acting as a regulatory agency as to the permits. Thus, the denial of the permit can also act as an inverse condemnation of a property interest.  Given the change in ordinances making drilling impossible, Trinity presented evidence the City denied all economically viable use of the mineral leases. As a result, the trial court erred in granting the plea as to Trinity’s claims for breach of contract, tort, and declaratory relief but properly denied it as to the takings claim.

If you would like to read this opinion click here. The Panel Includes Justice Lang-Miers, Justice Myers, and Retired Justice O’ Neil. Justice Lang-Miers delivered the opinion of the court. If you would like to see the representatives for The City of Dallas and Trinity East Energy, LLC click here.

Town entitled to enforce mediation agreement against property owner over sand dispute


Doyle Wells, Sea Oats Investments I, L.P. f/k/a Lamkin Properties Limited Partnership, and Quixote Dunes, Inc. v. Texas Department of Transportation and Town of South Padre Island, 13-15-00175-CV (Tex.App— Corpus Christi, February 2, 2017)

This is a takings case involving allegations the City took sand from the Plaintiff’s property without due process or just compensation. However, this opinion focuses on a subsequent settlement and its enforceability.

Wells purportedly owns various properties along Park Road 100 on South Padre Island. The Texas Department of Transportation (“TxDOT”) maintains Park Road 100, including keeping the roadway clear of sand.  Wells filed suit against the Town of South Padre Island (“SPI” or “Town”) and TxDOT alleging TxDOT removed sand from his property adjacent to the Road and transported it to SPI beaches. The Town filed a summary judgment asserting, amongst other things, that it only provided trucks via a subcontractor and did not actually remove or take anything.  After granting the Town’s motion (which was interlocutory), the trial court ordered the parties to mediation.  At mediation the parties settled and sign the mediated settlement agreement (“MSA”).  However, one month later Wells withdrew his consent asserting it was not a knowing and willful consent. The Town counterclaimed to enforce the MSA and filed an additional summary judgment motion.   The trial court denied the Town’s enforcement motion, but severed the case so the original MSJ could become final. The parties appealed and cross-appealed.

The central issue for the appeal is the Town’s right to enforcement of the settlement agreement. SPI produced conclusive evidence to establish a valid contract. The terms of the MSA state that in consideration of $10,000 paid by SPI to Wells within twenty-one days Wells agreed to execute a full and final release and would dismiss SPI with prejudice. The MSA states it is enforceable as a Rule 11 agreement. Wells did not establish the lack of an essential term (i.e. the ownership disposition of the sand) as his own affidavit states the ownership interest was transferred to TxDOT, not the Town. So the Town could not agree on the ownership of property it does not own. Second, despite Wells’ complaints about his own counsel, he signed the MSA and the Town conclusively established it complied with the terms by tendering payment by the deadline. As a result, the trial court should have granted the summary judgment motion on the Town’s counterclaim.

If you would like to read this opinion click here. The Panel includes Chief Justice Valdez, Justice Benavides, and Justice Hinojosa. Justice Benavides delivered the opinion of the court. To see the docket page with attorney information click here.