13th Court of Appeals holds City sufficiently complied with TOMA and Tax Code in 2019 when it adopted its annual tax rate


Leftwich v City of Harlingen, 13-20-00110-CV (Tex. App. – Corpus Christi, Sep. 9, 2021).

This is a declaratory judgment suit to declare the city violated procedural requirements when it adopted its tax rate in 2019. The Thirteenth Court of Appeals held no alleged violation constituted a waiver of the City’s immunity.

Leftwich alleges the City violated several statutory requirements in 2019 when it adopted its tax rate, including (1) the published notice failed to conform to the “date, time[,] and location” requirements of Texas Local Government Code § 140.010(c),  (2) the City failed to meet the deadline to adopt the tax rate (requiring a vote on proposed tax rate “not be earlier than the third day or later than the [fourteenth] day after the date of the second public hearing”); (3) the City violated TOMA by not allowing public comment “before or during” the consideration of the of the tax ordinances and various other procedural deficiencies. The City filed a plea to the jurisdiction, which the trial court granted. Leftwich appealed.

The court first noted that TOMA’s waiver of sovereign immunity only extends to mandamus or injunctive relief for actual or threatened violations of TOMA, not to suits for declaratory relief.  Further, under TOMA, substantial compliance is sufficient. The location of a meeting may be sufficient without including the full street address, name of the city, or meeting room, so long as the notice sufficiently apprises the public of the location.  Here, the term “town hall” sufficiently put the public on notice of the location of the meeting. No general waiver of immunity exists under the UDJA.  Plaintiff sought a judgment “declaring that the[o]rdinances are invalid and void ab initio” due to appellees’ alleged TOMA and tax code violations. The alleged TOMA violation during the meeting focused on the City Council not taking public comments before voting on the first reading of the tax ordinance. However, the mayor was clearly heard on camera, prior to the final vote on the first reading of each ordinance, asking for discussion, to which no one responded. Assuming, arguendo, that the mayor’s call for discussion was not clearly directed to the public, Leftwich would remain unsuccessful as that was only the first reading. The ordinance was not adopted until the second reading. Only an action taken in violation of TOMA is voidable.  Under the tax code, no requirement exists that two publications exist for public hearings, only that two public hearings are held and that notice is published. Under § 26.06(e) of the Texas Tax Code, the City was required to hold a meeting to vote on the tax ordinances not “earlier than the third day or later than the [fourteenth] day after the date of the second public hearing.” However § 26.06(e) provides no authority for a court to enjoin the collection of taxes for failure to comply with § 26.06(e), which is what Plaintiff seeks.  Plaintiff further asserts the councilmember making the motion failed to follow the specific quoted language for the motion contained within the statute. However, after reviewing the record, the court concluded the motion followed the important parts of the statutory language, verbatim.  Leftwich next asserted the City failed to properly post the necessary tax information on the City’s website.  However, Leftwich failed to present evidence that would raise a fact issue as to whether the City previously posted the notice to the website. The court concluded the undisputed language which was present meets the requirements of Texas Tax Code § 26.05(b)(2), which requires the notice be published after the ordinance is adopted. Leftwich failed to allege jurisdiction under TOMA or the Tax Code for any alleged violation.  Finally, while Plaintiff attempts to bring a First Amendment claim, he failed to brief the claim and therefore waived it.

If you would like to read this opinion click here.  Panel consists of Justices Benavides, Hinojosa and Silva. Memorandum opinion by Justice Silva.

Dallas Court of Appeals holds Plaintiffs failed to challenge all grounds on which dismissal could have been granted; therefore dismissal is affirmed


Chris Carter and Karen Pieroni v. Dallas City Plan Commission and City of Dallas, 05-20-00190-CV, (Tex. App – Dallas, March 1, 2021)

This is a Confederate monument case where the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

After a Confederate monument was originally scheduled for removal from a City cemetery, Plaintiffs brought suit to prevent its destruction. Through asserted the City violated its own codes, violated the Texas Open Meetings Act, the Texas Monument Protection Act and a few others. The City filed a plea to the jurisdiction, which was granted, except to claims under the Texas Antiquities Act. Plaintiffs appealed after non-suiting the remaining claim.

No judgment may be reversed on appeal unless the error complained of probably caused rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). To appeal, an appellant must challenge each independent ground asserted in the plea. The City asserted three grounds in its plea to the jurisdiction: standing, governmental immunity, and the political question doctrine. The political question doctrine is not necessarily a component of or necessarily entwined with either of the other two grounds. Plaintiffs challenged standing and immunity, but not the political question doctrine. Because the Plaintiffs did not challenge each independent, standalone ground on which the dismissal of their claims could properly have been based, the court affirmed the granting of the plea.

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

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals


Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

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


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.

Beaumont Court of Appeals holds firefighter’s last-chance agreement in collective bargaining city deprived trial court of jurisdiction to hear appeal of indefinite suspension



Michael Scott Nix v. City of Beaumont, 09-18-00407-CV (Tex. App. -Beaumont – Oct. 3, 2019)\

This is an interlocutory appeal in a firefighter suspension case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. He asserted the Collective Bargaining Agreement (“CBA”) was invalid because the City allegedly failed to comply with the Texas Open Meeting Act (“TOMA”) requirements when the CBA was negotiated.  He also asserts the “last chance” agreement he entered into with the Fire Chief was invalid. Nix’s last-chance agreement probated part of the suspension, but noted he could be terminated if he violated any terms of the agreement.  Nix’s suspension in 2015 resulted in the last-chance agreement and the Chief determined he violated the sick leave policy in 2017 resulting in an indefinite suspension. Nix asserts in the absence of a valid contract, the suspensions were invalid, depriving him of due process of law and a protected property interest. The City filed a plea to the jurisdiction, which was granted.  Nix appealed.

TOMA has a limited waiver of immunity. An action taken in violation of TOMA is voidable, not void. When a department head suspends a firefighter for violating a civil service rule, the suspension may be for a reasonable period not to exceed fifteen calendar days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b). The firefighter may accept the suspension or appeal to the Civil Service Commission. If the firefighter disagrees with the Commission, the employee may file suit in district court. The question of whether the City posted the CBA 2012-2015 negotiations in accordance with TOMA is not relevant because it is the CBA 2015-2020 CBA applicable to his underlying challenge to his indefinite suspension in 2017.  The City provided evidence showing proper postings for the negotiation of the 2015-2020 CBA.  When Nix accepted the last-chance agreement in 2015, he had the opportunity to refuse the Chief’s offer and appeal his suspension to the Commission; however, Nix agreed to waive his right to appeal, including the right to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement. Nix waived all rights he may have to file suit against the City as to any issue directly or indirectly related to the last-chance agreement or to his indefinite suspension.  As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson.  Opinion delivered by Chief Justice McKeithen. The attorneys listed for Nix are Melissa Azadeh and Laurence Watts.  The attorneys listed for the City are Sharae Reed and Tyrone Cooper.

13th Court of Appeals holds building and standards commission order was final, so could not be collaterally attacked under TOMA


Harker Heights Condominiums, LLC v. City of Harker Heights, Texas, 13-17-00234-CV (Tex. App. – Corpus Christi, March 28, 2019).

In this case the 13th Court of Appeals affirmed the granting of the City of Harker Heights’ plea to the jurisdiction dismissing a claim for injunctive relief to prevent the demolition of a building.

Harker Heights Condominiums (HHC) owns property on which thirty-three condominium units sit and that are leased to low income residents in need of housing. The City inspected the property, found defects and ordered repair.  The inspector found substandard conditions rising to such a level as to pose substantial danger to life, health and property.  The City’s Building and Standards Commission ordered certain properties repaired within ninety days or be demolished. HHC was able to bring one unit up to code, but was not able to timely repair the remaining units. After the City awarded a demolition contract, HHC sued to prevent destruction of the units. An initial temporary injunction was granted. After HHC added a claim for violating the Texas Open Meetings Act (TOMA) the City filed a plea to the jurisdiction which was granted. HHC appealed.

Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. The local government code provides for judicial review of any decision of a building and standards commission panel, but the “district court’s review shall be limited to a hearing under the substantial evidence rule.” To appeal an order of a building and standards commission, an aggrieved party must file a verified petition in district court within thirty days of the commission’s order.  HHC waited eighty days. HHC asserted the “decision” was actually the City Council decision to award the demolition contract, not the Commission’s decision. However, the City’s award was merely the granting of a contract, not an order outlined in Chapter 214 of the Local Government Code. The court noted that even if the HHC injunctive relief were interpreted to be a proper petition for review under Chapter 214, it was nonetheless untimely. This untimely filing also means HHC’s TOMA suit is untimely as holding otherwise would subject the commission order to impermissible collateral attack. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, Justice Hinojosa and Visiting Judge Dorsey. Memorandum Opinion by Visiting Judge Dorsey. The attorneys listed for the City are Charles D. Olson, Charles Alfred Mackenzie and Burk A. Roberts.  The attorneys listed for HHC are Brandy Wingate Voss,  Ryan D. V. Greene and  G. Alan Waldrop.

Texas Open Meetings Act section held unconstitutional by Texas Court of Criminal Appeals


State of Texas v Craig Doyal, PD-0254-18 (Tex. Crim. App. – February 27, 2019)

In this criminal case, the Texas Court of Criminal Appeals held unconstitutional the provision of the Texas Open Meetings Act (“TOMA”) regarding circumventing the Act by meeting in numbers of less than a quorum.

The Montgomery County judge, a member of the Commissioner’s Court, was indicted for allegedly attempting to circumvent TOMA regarding a local county road issue.  Doyal filed a motion to quash the criminal charge, challenging the constitutionality of the circumvention provision.  The trial court dismissed the complaint but the Court of Appeals reversed, holding the TOMA provision was constitutional. Doyal appealed.

The Court first disagreed with the State’s position and held the statute regulates speech, not simply conduct. The definition of “meeting” requires a deliberation or exchange of information, which is speech. For purposes of TOMA, the statutory act of engaging in a “meeting” is communicative.  Next, the Court held when a vagueness challenge involves the First Amendment, a criminal law may be held facially invalid even though it might not be unconstitutional as applied to the defendant’s conduct. To pass constitutional muster, a law that imposes criminal liability must be sufficiently clear (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) to establish determinate guidelines for law enforcement.  When the law implicates First Amendment freedoms, it also must be sufficiently definite to avoid chilling protected expression. What renders a statute vague is the “indeterminacy of precisely what” the prohibited conduct is. Under § 551.143, a person commits an offense if the person “knowingly conspires to circumvent TOMA by meeting in numbers less than a quorum for the purpose of secret deliberations ….”  The Court found it difficult to support the provision, since TOMA applies only when a quorum is present but the crime is committed when a quorum is not present. Further, the phrase “knowingly circumvent” does not focus on real-world conduct and is a catch-all provision in the abstract. As a result, the provision was held unconstitutional on its face.

The concurring opinion disagreed the statute was vague and simply reasoned the statute impermissively violated the First Amendment.  The dissent disagreed with both the vagueness and First Amendment analysis.

If you would like to read this opinion, click here. Concurring opinion by Justice Slaughter found here. Dissenting opinion by Justice Yeary found here.

School District substantially complied with TOMA even though it had a glitch with website postings for five months, says Amarillo Court of Appeals

Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District, 07-17-00189-CV (Tex. App. – Amarillo, January 9, 2019).

This is a Texas Open Meetings Act (“TOMA”) case where the Amarillo Court of Appeals affirmed a take-nothing judgment in favor of the Pampa Independent School District (“PISD”).

PISD hired Terrell as a teacher on a probationary basis. At the end of the school year, the PISD board voted to terminate her. Terrell brought suit, asserting PISD committed TOMA violations in 21 separate meetings and demanded that all actions taken during those meetings (including her termination) are void. Physical notice for each of the 22 challenged meetings was posted to the inside of an external glass door of the administrative building for PISD in a manner in which the public could view them at any hour. These physical notices identified the date, time, and place of each respective meeting. Meeting notices were also posted to PISD’s website — most of the time. Due to an issue arising from a transfer to a new website for PISD, notice of meetings were not posted on PISD’s website for five months.   PISD was unaware of the website glitch, but upon learning of it, the board took corrective action. PISD also posted notices only on the outside bulletin board and not the one inside its administrative offices.   The trial court issued a take-nothing judgment against the Plaintiffs, and they appealed.

The panel opinion noted the Texas Supreme Court has indicated that substantial compliance with TOMA’s notice requirements is sufficient. To determine whether a governmental entity substantially complied with the requirements of TOMA, courts look to whether the notice fairly identifies the meeting and “is sufficiently descriptive to alert a reader that a particular subject will be addressed.”  Courts are not to determine whether the entity could have posted a better notice in a better manner; rather, they are tasked with determining whether the notice was sufficient to notify the public of the specific meeting and its topics. Physically posting the agendas in a glass case outside the building for all to see at any time was sufficient for substantial compliance under TOMA.  PISD provided sufficient evidence to constitute a good-faith effort to post on the website, explained how the glitch occurred and what was done to fix it.  Appellants next argued that PISD violated TOMA by including only a partial description of the place of the meetings, such as “Pampa High School,” without identifying the meeting room, full street address, or name of the city. TOMA requires that the notice identify the “place” of the meeting. The panel held that while it would be more helpful if the notices had identified the specific room, it deemed the school title descriptions were sufficiently specific to alert the public of the location of the school board meetings. As a result, the take-nothing judgment was affirmed.

If you would like to read this opinion, click here. Panel consists of Justice Campbell, Justice Pirtle and Justice Parker. Opinion by Justice Parker. Thanedar and Terrell were pro se.  Attorneys listed for the  PISD are Jennie C. Knapp  and W. Wade Arnold.

City immune from claims it misapplied its own ordinances or procedures, but not for TOMA claims



Peter Schmitz, et al v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, May 10, 2018).

This is a substituted opinion. Summary of original opinion found here. 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.

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. The Town and Church both filed pleas to the jurisdiction which the trial court granted. The Plaintiff appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity when no ordinance is being challenged. The City maintains immunity for claims seeking a declaration of the claimant’s statutory rights or over a claim that government actors have acted outside the law—ultra vires. However, the majority of the Plaintiff’s requested declarations would establish that the Town, not the individual committee or council members, violated or misapplied its own ordinances or procedures, rendering its actions arbitrary and unreasonable. The Town maintains immunity from such claims. The ordinances further did not waive the Town’s immunity by authorizing suit for enforcement.  With no UDJA claim, requests for permanent injunction are also not viable. Liability against a governmental unit for private-nuisance injuries arises only when governmental immunity is clearly and unambiguously waived, which is not the case here. However, immunity is waived under the Texas Open Meetings Act (“TOMA”) so the TOMA claims are remanded. The court stressed that the waiver of immunity under TOMA does not apply to the extent Plaintiffs seek more than injunctive relief or a declaration that the Town’s actions were voidable under TOMA only. Under Plaintiffs’ §1983 claims, a regulatory taking can occur when governmental action unreasonably interferes with a landowner’s use and enjoyment of his property. However, the Plaintiffs claims challenge the process in which the Town enforced its ordinances, not the substance of the enforcement. Plaintiffs have no protected property interest in the manner in which the Town enforced or failed to enforce its ordinances against the Church, rendering their claim under § 1983 not viable. And while the Town argued RLUIPA preempted their enforcement of certain matters of the ordinances, RLUIPA does not implicate jurisdiction so is not proper to raise in a plea. The court then analyzed the claims against the Church and ultimately held some claims survived and were remanded.

If you would like to read this opinion click here. Panel consists of Justice Gabriel and Justice Pittman. Memorandum Opinion by Justice Gabriel. 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.

TOMA posting inside City Hall with a “cancelled” stamp on an agenda controlled, regardless of other agendas says 13th Court of Appeals


City of Donna, Texas, David Simmons, Jose Garza, Simon Sauceda, Irene Munoz and Sonia Gallegos v. Oscar Ramirez 13-16-00619-CV (Tex.App— Corpus Christi, November 9, 2017)

This is a Texas Whistleblower Act case where the Corpus Christi Court of Appeals affirmed the denial of the City Defendants’ plea to the jurisdiction.

Ramirez, the City’s former city manager, brought causes of action against the City under the Texas Whistleblower Act and the Texas Open Meetings Act (“TOMA”). He asserts he was terminated after he reported the Chief of Police and municipal judge for ordering him to waive certain municipal fees. He asserts the meeting where the City Council terminated him was not conducted properly under TOMA. He brought suit against the City and individual officials. The City Defendants filed a plea to the jurisdiction, which the trial court denied. The City Defendants appealed.

The 13th Court first addressed the TOMA violations. The City Charter had a special provision for notice and removal of the City Manager. The City Council could act to terminate at a properly posted meeting, but the City Manager had the right to request another meeting with charges. After the first meeting, Ramirez’ lawyer requested the charges and the second meeting. After it was scheduled, the lawyer requested it be reset and the City Secretary advised him it was reset. And while she provided txts to the council members about the reset and stamped “cancel” on the agenda inside City Hall, the agenda posted outside City Hall did not change.  The meeting proceeded as originally scheduled and the City Council affirmed the termination. The court held Ramirez had standing to sue under TOMA as an interested member of the public.  Under TOMA, a stamp of “canceled” tells the public the meeting would not be held. The fact the notices outside City Hall did not change did not save this defect. The language of §551.050 of TOMA specifically states a posting must exist in the City Hall.  As a result, the trial court did not err. Under the Texas Whistleblower Act, the elements of a  claim must be included in the pleadings so that the court can determine whether they sufficiently allege a violation and therefore waive immunity. The Texas Constitution states, in relevant part, that an entity may not “lend its credit or to grant public money or thing of value in aid of, or to any individual…” Tex. Const. art. III, §§ 50, 52(a).  Additionally, while not expressly listed by statute, the factual allegations trigger various penal statutes as well, including abuse of official capacity under Tex. Penal Code §39.02(a)(West 2015). Ramirez asserts he was ordered to waive and/or discount certain bills and/or charges for certain city services, e.g., sewer and water bills, fees for pavilion rental at the city park, and/or cemetery fees. Such actions, if true, could possibly violate both the Texas Constitution and the penal code. Recognizing that Ramirez’s burden of proof at this stage does not involve a significant inquiry into the substance of his Whistleblower claim, the court held he properly pled a claim. Ramirez’s Whistleblower and TOMA claims were brought solely against the City, while Ramirez’s declaratory judgment action was brought solely against certain appellants in their individual capacities. Since the individuals cannot claim the City’s immunity as a defense for a plea, their part of the appeal is not authorized under the interlocutory appeal statute raised. Tex. Civ. Prac. & Rem. Code §51.014(a)(8)(West 2015).  As a result, the trial court did not err in denying the plea.

If you want to read this opinion, click here. The panel consists of Justice Valdez Justices, Conteras, and Hinojosa. Justice Hinojosa delivered the opinion of the court. To see the attorneys listed for the Appellants and Appellee click here.

City waived immunity in breach of contract case for solid waste disposal services


City of Rio Grande City, Texas, and Joel Villarreal, Herman R. Garza III, Arcadio J. Salinas III, Rey Ramirez, and Dave Jones in their Official Capacities v. BFI Waste Services of Texas, LP d/b/a Allied Waste Services of Rio Grande Valley,04-15-00729-CV (Tex. App – San Antonio, September 21,2016)

This is an appeal from the denial of a plea to the jurisdiction regarding a breach of contract claim arising from a solid waste disposal contract. The court affirmed in part and reversed in part.

In 2011, Allied entered into a contract with the City to be the exclusive provider of solid waste disposal services within the City’s limits through September 2018. In April 2015, the City notified Allied that it had failed to perform its obligations under the contract and also improperly billed the City for services Allied did not perform. According to the City, when Allied failed to cure the breach it terminated the contract. Allied contracted with Grande to take over solid waste disposal. Allied sued the City and Grande. Allied obtained a temporary restraining order prohibiting the City and its agents from taking actions inconsistent with Allied’s contract rights. The City counterclaimed, then removed the case to federal court. While the case was removed the City passed a resolution terminating the contract in an attempt to correct an alleged Texas Open Meetings Act problem. The federal court then remanded the case, sanctioned the City for improper removal, then the state trial court signed a second TRO.  The City filed a plea which the trial court denied.  The City filed this appeal as to the plea and TRO.

The court first held that Grande is not entitled to derivative governmental immunity. In Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 124 (Tex. 2015) the Texas Supreme Court noted governmental immunity was designed to guard against “unforeseen expenditures” associated with the government defending lawsuits and paying judgments “that could hamper government functions” by diverting funds from their allocated purposes. Immunizing a private contractor does not further this purpose. Further, the allegations against Grande interfering with an existing contract occurred prior to it obtaining the contract with the City, so immunity still would not apply for acts within that time period. Next the court held the allegations against the officials, in their official capacity, were sufficient to trigger an ultra vires claim.

As to the City, in order for the trial court to have jurisdiction over a contract claim asserted against a local governmental entity, the plaintiff must establish “a demand for certain kinds of damages” as limited by §271.153 of the Texas Local Government Code.  Allied requested the “balance due and owed” under the contract, which is recoverable under §271.153. Allied also requested additional damages, including actual and consequential damages, as well as pre- and post- judgment interest, costs of court, reasonable and necessary attorneys’ fees, injunctive relief, and declaratory judgment. Some of these additional damages are not recoverable under §271.153. Allied responds that the City waived immunity from breach of contract damages by filing counterclaims. That argument only applies to an offset for claims which are germane or connected with the counterclaims. Allied’s breach of contract claim and the City’s breach of contract counterclaim arise from the same facts and controversy.  As a result, the trial court has jurisdiction over the controversy. To the extent Allied requests declaratory judgment relief, Allied’s claims do not fall within the narrow waiver of immunity since the validity of an ordinance is not being challenged. Next the court held the claims brought under the Texas Open Meetings Act were not moot even after the City moved to correct any alleged mistake in the notice at a subsequent meeting. Allied also alleged the City’s actions were in violation of the contracts clause and Fourteenth Amendment of the United States Constitution. To prevent interference with its constitutional rights, Allied seeks only injunctive relief.  Since the constitutional claim is only seeking injunctive relief and not monetary damages, it is not barred by immunity. [Comment: This seems contrary to the line of cases noting a party cannot disguise a claim for monetary damages in a contract through equitable claims.] The court found Allied alleged a due process violation based on a constitutional contract claim.  However, Allied’s claim the City abused the removal process is not the same facts and controversy as the City’s counterclaims and does not fall under the Texas Tort Claims Act. Therefore, the declaratory judgment and abuse of process claims should have been dismissed, but all other claims can properly go forward.

If you would like to read this opinion click here. The Panel includes Justice Angelini, Justice Barnard, and Justice Pulliam. Justice Pulliam delivered the opinion of the court.  Attorneys listed for the City are Jacqueline LeFevre Salinas, Antonio Martinez and Brandy Wingate Voss. Attorneys listed for Allied are Gilberto Hinojosa and John David Franz.

Property owners cannot sue on City’s right to amend deed restrictions on lots it owns or create City park; increased traffic and noise cannot be basis for inverse condemnation claim

The City of Friendswood and Kevin Holland v. Paul and Carolyn Horn, et al., 01-15-00436-CV (Tex. App. – Houston [1st Dist.], February 11, 2016).

This is essentially an inverse condemnation case where the First Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the Plaintiff’s claims involving converting adjoining property to a city park.

After Tropical Storm Allison destroyed the Imperial Estates Section One subdivision, the City of Friendswood acquired most of the subdivision’s 42 lots through a federally-subsidized flooding mitigation program from FEMA.  The program required the City to leave the lots open for flood control, but the lots could be used for specific purposes, including a park.  Four property owners did not sell and rebuilt their homes. Ten years later, the City decided to develop the lots (consistent with federal guidelines) into a park and the home owners sued asserting the park was inconsistent with deed restrictions, was an inverse condemnation, and a nuisance. The trial court denied the City’s plea to the jurisdiction and the City appealed.

The 1958 deed restrictions dictated that lots were dedicated “for residential purposes only.” Since the City owned 38 lots, it had the ability to amend the restrictions under the express terms of the deeds and did so through a properly posted meeting. The City’s actions were in furtherance of flood control and public park development, which are governmental functions as a matter of law, not proprietary. As a result, immunity applies. Under the takings analysis, the court determined the City did not enter onto the Plaintiff’s property, but merely moved forward with developing the lots it already owns. The homeowners’ live pleadings does not allege that any diminution in the value of their lots occurred when the City acquired lots in 2001. Rather, the homeowners allege that the City’s decision to place a park adjacent to their property 10 years later impairs the peaceable use and enjoyment of their property. These allegations cannot support an inverse condemnation claim for compensation. “[I]ncreased traffic and noise to a community do not give rise to a compensable taking.” The homeowners’ nuisance claim is premised on the same allegations as their inverse condemnation claim and is also insupportable. Further, the City is immune from any declaratory judgment claims or contract claims arising out of its right to amend the covenants. To the extent the homeowners seek injunctive relief or specific performance to enforce the deed restrictions, these claims for relief may not be brought against a governmental unit. The City is immune from misrepresentation claims as such are intentional torts. Finally, the undisputed evidence established properly Texas Open Meetings Act postings, so the ultra vires claims against the Mayor are dismissed.

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Bland and Justice Huddle. Opinion by Justice Bland. The attorneys listed for the Plaintiffs are Aaron Mark Pool and James T. Sunosky. The attorneys listed for the City are William S. Helfand and Charles T. Jeremiah.

TOMA case remanded for trial… again

Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District, 07-14-00014-CV (Tex. App. – Amarillo, February 1, 2016).

This is a Texas Open Meetings Act (“TOMA”) case where the Amarillo Court of Appeals withdrew its October 29, 2015 opinion and replaced it with this one. Summary of withdrawn opinion found here.

This is actually the second appeal in the case. The trial court originally granted PISDs summary judgment. The first appeal resulted in the court remanding the case back to the trial court by holding a fact issue existed on a proper TOMA internet posting. However, the court did not affirm or deny the other summary judgment claims. Upon remand, the trial court only allowed the Plaintiffs to try the internet posting allegations. The trial court issued a take nothing judgment on that issue. In the withdrawn opinion, the court held it did not have jurisdiction for the appeal because the judgment was not final and did not dispose of all issues.

In this new opinion, the court reconsidered its original holding and noted that the judgment said it was final, is therefore presumed to be final, and the court therefore had jurisdiction to hear the appeal.  However, the court then determined that since the trial court improperly limited the Plaintiffs to only the internet posting allegations, not all of the allegations they properly brought, the case should be remanded for a new trial. [Comment: This still missed the procedural mark as, if the “untried” claims were addressed in the summary judgment, the trial court properly limited the trial. I believe the court should have addressed whether the summary judgment was proper on the remaining claims before considering whether a reversal is appropriate.]

If you would  like to read this opinion click here.

Teacher lacked “public standing” to challenge Open Meetings Act violation since he had individualized injury says Dallas Court of Appeals

Dallas Independent School District and Michael L. Williams, Commissioner of Education v. Adrian Peters, 05-14-00759-CV (Tex. App. – Dallas, December 14, 2015).

This is essentially a Texas Open Meetings Act (“TOMA”) case even though it has administrative law undercurrents.

The Dallas Independent School District (“DISD”) terminated Assistant Principal Adrian Peters’ (“Peters”) who appealed the termination under Chapter 21 of the Texas Education Code. The allegations made the basis of the termination were Peter’s alleged physical restraint of a female student who would not return to class.  After a two-day trial the independent hearing examiner found good cause existed to terminate Mr. Peters’ contract and recommended termination. The DISD Board Subcommittee (“School Board”) adopted the recommendation of the independent hearing examiner and voted in a closed session meeting to terminate Peters’ contract.  Peters sued alleging that since the vote occurred in closed session, the School Board violated TOMA and the termination was void. The trial court held good cause existed to terminate Peters but since the vote occurred in closed session, it was void. DISD appealed the TOMA claim and Peters appealed the determination of good cause.

The court went through a lengthy review of the record and found the determination that good cause existed for Peter’s termination was supported by substantial evidence. From an administrative law standpoint, the lengthy analysis and determination of a lack of credibility for reasonable force and behavior can be helpful to those who practice administrative law. The court next divided the TOMA claims into two standards of review: one under the administrative appeal and one as a straight TOMA claim brought by a citizen. Under the Education Code challenge, a meeting of the School Board to consider the Hearing Examiner’s recommendation is not an evidentiary proceeding. Peters attended and fully participated in the meeting through his attorneys. At his request, the meeting was held in a closed session. During the meeting, Peters’ attorneys presented oral argument on his behalf. Mr. Peters’ attorneys were present and observed the entire meeting, including the School Board’s vote. There is no evidence or showing that the School Board’s decision would have been any different, had it voted in an open session. Therefore, the error in conducting the vote in a closed session did not lead to an erroneous decision under administrative law standards.  Next, under a citizen brought TOMA claim, Peter’s standing comes from whether the School Board errored by voting in closed session instead of open session. Peters, the sole plaintiff here, undisputedly had notice and attended the meeting and was thus present for both the portion properly held in closed session (at his request), and the vote, which should have been held in an open session.  “The question here, then, is whether a member of the general public who both receives notice of the meeting and actually attends, as the act seeks to permit, has been ‘injured or wronged within the parameters of the language used in the statute’ so as to qualify as an ‘interested person’ entitled to bring suit.”  An interested person under the PIA is one who receives a generalized injury for a TOMA violation. Peters’ injury was very individualized and participated in the all parts of the meeting. As a result, he lacks “public standing” to bring a TOMA violation. As a result, the trial court erred in holding the termination was void under TOMA.

If you would like to read this opinion click here. Panel: Justice Lang-Miers, Justice Brown and Justice Schenck. Memorandum Opinion by Justice Schenck. The attorney listed for DISD is Robert E. Luna.  The attorney listed for Williams is Andrew Lutostanski.  The attorneys listed for Peters are Daniel A. Ortiz, V. Shane Goetz and Giana Ortiz.

Trial court failed to try all claims during bench trial so judgment is not final and court of appeals lacks jurisdiction says Amarillo Court of Appeals

Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District, 07-14-00014-CV (Tex. App. – Amarillo, October 29, 2015).

This is a Texas Open Meetings Act (“TOMA”) case where the Amarillo Court of Appeals held the judgement for the school district at the trial court was not yet final since the trial court did not try all of the claims at the bench trial like it should have.

This is the second court of appeals opinion (and possibly not the last) regarding the non-renewal of Terrell’s employment contract as a first grade teacher with the Pampa Independent School District (“PISD”). Terrell and her husband essentially alleged the PISD violated TOMA when it terminated her employment. The first opinion found at 345 S.W.3d 641 reversed the trial court’s order granting the PISD’s summary judgment motion and remanding back to the trial court. The remand was based on a fact issue of whether the PISD was entitled to the good faith exception for attempts to timely post a TOMA agenda notice on the internet. The parties held a trial to the bench, however, the court limited the entire trial to the attempted internet posting and did not allow Terrell to present any evidence of other TOMA violations. The trial court held for PISD on the merits and Terrell appealed.

The live pleadings claim that PISD violated TOMA by: (1) failing to post meetings on its internet website; (2) failing to post physical notice on the bulletin board in its Central Administrative Office; (3) not having notices posted for the statutorily required period of 72 hours before meetings; (4) not specifying the place of meetings in its notices; (5) not following the proper process to close the March 26, 2009 meeting; and (6) having notices signed by a person not designated or authorized to sign the notices.  While the original appeals opinion held a fact question existed as to the internet posting, the court held that ruling was dispositive of the appeal and not a limitation on Terrell’s claims. Nothing in the opinion affirmed the trial court’s granting of the MSJ on the other five claims. As a result, the judgment issued on remand did not address all claims by all parties and was, therefore, not final for purposes of appeal. The court of appeals dismissed the appeal, but essentially ruled the case is still active at the trial court.

If you would like to read this opinion click here. Panel: Justice Campbell, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Hancock. The attorneys listed for the PISD are Andrea Gulley and W. Wade Arnold.  The Plaintiffs were each pro se.