2nd District disagrees with AG opinions regarding “rubber-stamping” committee action under TOMA.

Tarrant Regional Water District v. Monty Bennett, 02-13-00354-CV (Tex. App. – Fort Worth, November 26, 2014).

This is a Texas Open Meetings Act (“TOMA”) case which rejects several Attorney General opinions holding that a violation of TOMA can occur due to rubber-stamping, at least with regards to water districts.

Bennett is a property owner  who brought suit to invalidate several decisions by the Water District regarding a pipeline project.  He asserted while the District met in open session, all the deliberations regarding the project occurred in committees which did not compose of a quorum of board members. He asserts the board simply “rubber-stamped” the committee’s decisions and therefore violated TOMA. The District asserted in its plea to the jurisdiction its committees are not made up of a quorum and additionally, the legislature specifically noted water district committees need not comply. Further, Bennett’s claims are ones which deal with his property and he was improperly using TOMA to circumvent immunity. The trial court denied the plea and the District appealed.

The court first noted that Tex. Water Code Ann. §§ 49.051, .053 state a water district must comply with TOMA, but that a committee of less than a quorum need not.  The court noted that the Water Code’s exception is consistent with TOMA as the Act defines a meeting as a deliberation of a quorum.  While the opinion talks a great deal about the Water Code, its reasoning and language can still apply to TOMA generally.  Bennett argued numerous  AG opinions stating that members of less than a quorum can still violate TOMA by rubberstamping.  The court disagreed holding to declare otherwise “effectively renders meaningless” the legislature’s definition of “meeting” which has a quorum requirement.   While agreeing TOMA is to be liberally constructed, the court held “[h]owever, liberally construing TOMA does not mean shelving well-established rules of statutory construction to achieve a particular result that is patently inconsistent with the literal terms of the statute.”  Essentially, TOMA does not say an exception to the quorum requirement exists if rubberstamping occurs, so it is not an exception.  [Comment: be warned that the AG and challengers may attempt to distance this case from city council meetings by arguing the Water Code has a specific provision applying to committees.  However, the reasoning and language can be applied generally, regardless of a comparable provision. It is just not as clear cut.]

The dissent disagreed arguing that allowing committees of less than a quorum to act without public meetings seems improper under TOMA.  [Comment: I did like majority’s footnote #2 which essentially held that a multi-billion dollar project with complex engineering and analysis is illogical to be run solely at the Board level.  While the ultimate decisions occur at the board level, committees serve important logistic purposes which cannot be ignored and TOMA recognizes that.]

If you would like to read this opinion click here.  The dissent can be found here.  Panel: Justice Dauphinot, Justice Gardner and Justice Meier.  Opinion by Justice Meier.  Dissent by Justice Dauphinot


City’s agenda posting sufficient under Texas Open Meetings Act says 5th Court of Appeals

Mark Baker v. The City of Farmers Branch, Texas, et al. Cause No. 05-13-01174-CV (Tex. App. –Dallas, July 15, 2014)

This is a Texas Open Meetings Act (“TOMA”) case where the Plaintiff sued to compel compliance of TOMA.

The City settled a Voting Rights Act lawsuit styled Fabela v City of Farmers Branch.  The City posted it would discuss the Fabela lawsuit in executive session. When the Council reconvened after the executive session it approved the settlement. Baker filed suit alleging the agenda posting was insufficient under TOMA and sought an injunction. After an injunction hearing, the trial court determined the notice was sufficient and dismissed Baker’s claims with prejudice. Baker appealed.

The Dallas court of appeals noted the agenda specifically listed an executive session, specifically identified §551.071 to discuss pending litigation with Fabela and listed the cause number. The court disagreed with Baker’s argument the agenda should have listed the City was considering settling the matter, dismissing the appeal, and paying Fabela a lump sum. It held the City properly identified the specific lawsuit and alerted the public to discussions regarding that lawsuit. The law does not require the notice to disclose strategies that might be discussed in the closed session or every consequence which may result from the discussion.  To require the specificity argued by Baker would defeat the purpose of the provision which authorizes private consultations between the governmental body and its attorney.  Baker’s argument that the City had already reached the decision to settle and merely “rubberstamped” the decision in open session. However, even given the City Manager’s statement that the City had an agreement in principle prior to the meeting, Baker failed to establish how any statement establishes the City Council met outside of its posted meeting. The Open Meetings Act does not prohibit the council members from expressing in a closed session how they intend to vote when they go back into open session. As a result, Baker failed to establish any TOMA violation occurred. The trial court properly dismissed his claims.

If you would like to read this opinion, click here. Panel: Justice Lang-Miers, Justice Bridges and Justice Francis. Opinion by Justice Lang-Miers. Attorneys for Appellant Mark Baker are Mitchell Madden, Melissa Johnson and Thomas Murto, III. Attorneys for Appellee City of Farmers Branch, Texas are Victoria Thomas and Peter Smith.

Former asst. chief’s claims dismissed after he was forced to resign; TOMA, Sabine Pilot, First Amendment, UDJA, etc.

Arnold Ochoa v. The City of Palmview, 13-14-00021-CV (Tex. App. – Corpus Christi, January 19, 2014)

This is an interlocutory appeal from the granting of a plea to the jurisdiction in an employment context.

Ochoa was an assistant police chief with the City.  He also was an incumbent on the school board. When a parent of a City council member ran for Ochoa’s school board position, he alleges he was pressured to resign from the race or suffer a demotion. Ochoa lost the school board race and was immediately under investigation for misuse of City property, causing him to resign. Ochoa filed suit under a variety of causes of action, but the trial court granted the City’s plea. Ochoa appealed.

The court first determined the facts, as alleged, do not support any claim for violations of the Texas Open Meetings Act. While Ochoa may suspect a meeting occurred, he had no evidence a meeting occurred in violation of TOMA. Further he was not challenging an ordinance but seeking a declaration of his rights that TOMA was violated. The City maintains immunity for such declaratory judgment actions. Next Ochoa did not properly allege an ultra vires claims as he was seeking affirmative, retrospective relief through reinstatement. Further he sued the council in their individual, not official, capacities. The City retains sovereign immunity for Ochoa’s Sabine Pilot claims.  Ochoa did not allege a proper breach of contract or promissory estoppel claim. Finally, all of this claims have incurable defects and therefore cannot be cured by repleading. The trial court proper granted the plea.

If you would like to read this opinion click here. Panel: Justice Rodriguez, Justice Garza, and Justice Benavides.  Opinion by Justice Garza. The attorneys listed for the City are J. Arnold Aguilar and Jaime J. Munoz.  The attorneys for Ochoa are listed as Javier Pena and David H. Jones

Trial court has jurisdiction to hear breach of contract and tort claims for trench expansion

City of New Braunfels, Texas v. Carowest Land, Ltd 03-11-00699-CV (Tex. App. – Austin, April 30, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction arising out of a dispute where the City’s public works project to help control flooding by diverting flow to the Guadalupe River crossed property owned by Carowest, Ltd.  This dispute has waged for many years and resulted in a 50 page opinion. So the summary is a little long – sorry. The analysis is very detailed. One thing to keep in mind when reading this very long opinion is the difference between waiver of immunity from suit (which keeps it in court for a merit determination) and waiver of immunity from liability (which is a defense to a merit determination against the entity). Here, we are talking about waivers from suit.

The City created a large drainage channel to divert run-off waters into the Guadalupe River which bisected Carowest’s 240-acre tract in a manner that severed approximately forty acres from the rest.  Carowest originally dedicated a portion of its tract to the City for this project. Carowest asserts (and the City disputed) it requested the City reroute the drainage channel to run instead along an outer boundary. The City refused and Carowest attempted to rescind the conveyance. A history of disputes arose including notices to condemn for sewer plan expansion, refusual to hand over land and dirt from excavation,  open meetings violations, and others. The parties entered into a letter settlement to try and resolve the dispute. However, both sides later asserted material breaches by the other. One breach claim was that under the agreement, Carowest would be liable to the contractor for any delay damages he may cause. Carowest sued the City and the City filed counterclaims. The City filed two pleas to the jurisdiction (one voluntarily dismissed and the second the subject of this appeal) and Carowest filed for a temporary restraining order. The trial court denied both and the City appealed.

The court first analyzed Carowest’s inverse condemnation claims for the dirt and fill he claims entitlement. In a ping-pong explanation, the court noted that Carowest did not own the tract (since he dedicated it) the fill was taken out of, normally, that could preclude a takings claim.  However, the court noted the documents on file indicate Carowest may have, via deed and contract, a reversionary interest in fill through an option clause. The court then pinged again by asserting there is a difference between when the City acts as a sovereign and when it acts as a contract party. Carowest pled at most an ordinary breach of contract claim which does not rise to a takings.  The court next addressed Carowest’s equal protection and substantive due process claims. For the same reasons the takings claims fails, so must the federal constitutional claims since they are predicated on the same facts and “subsumed” into the takings claims.

As to Carowest’s common-law monetary claims for contract and tort, the City’s actions were governmental not proprietary, so it maintained immunity. The court then noted the Texas Supreme Court has rejected a general waiver by conduct theory and such a theory would only apply as to whether immunity existed in the first place. Carowest’s only colorable argument is that the City filed counter-claims and thereby waived its immunity from suit. The fact immunity is waived only as to the offset of the City’s counterclaims is a merit argument, not a restriction on the initial jurisdiction of the court. And since the City must establish it complied with its obligations under the contract in order to bring a breach claim for failing to indemnify for delay damages, Carowest’s breach claims are germane and connected with the counter-claim waiver as are the associated attorney’s fees. The tort claims arise (which basically boil down to allegations the City induced Carowest into certain actions then changing its mind) are also germane to the counter-claims. The court noted that even if the City did not waive immunity from suit by filing counter-claims, Carowest’s contracts are subject to the waiver contained in subchapter I of Chapter 271 of the Texas Local Government Code.

The court next addressed the three declaratory judgment claims; Open Meetings Act violations, declaration of the validity City’s contract with contractor to build the trench, and the validity of contractor’s delay claims against the City (which implicate City’s indemnification counter-claim). Carowest alleged the City Council improperly convened in executive session, over which the trial court has subject matter jurisdiction. The validity of the trench contract was challenged under Chapter 252 (competitive bidding) and the City did not completely negate the fact Carowest was not a tax paying “resident” (drawing an odd analysis of the difference between a property owner and a true resident).   As a result, the trial court had jurisdiction. Finally, the delay claim are tied to the waiver under Subchapter I of Chapter 271, so jurisdiction exists. The delay claim is not moot because even though the contractor released the claim in a settlement, the City assumes the release is valid, so a justiciable controversy still exists.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Pemberton and Justice Henson.  Opinion by Justice Pemberton. The attorneys listed for the City are Mr. J. Frank Onion III, Ms. Valeria Acevedo, Mr. Adolfo Ruiz, Mr. Michael B. Smithers, Mr. William M. McKamie, and Mr. Donald J. Jemela.   The attorneys listed for Carowest are Mr. Mark R. Murphy, Mr. Ryan G. Anderson, and Mr. Jason M. Davis.

Car stop was an emergency situation entitling City to immunity after police dog bit Plaintiff

The City of Houston v Stephon Lamar Davis, 01-13-00600-CV (Tex. App.- Houston[1st Dist.], April 24, 2014)

This is an interlocutory appeal from the trial court’s denial of the City of Houston’s plea to the jurisdiction in a police dog bite case under the Texas Tort Claims Act. The trial court denied the City’s plea to the jurisdiction based on an emergency exception but the 1st District Court of Appeals in Houston reversed and rendered a dismissal.

Officer Briones pulled over a red car after Davis’s wife told him that the car was trying to run her off the road. After Briones stopped the red car, Davis parked nearby and got out of it. He was bitten by Briones’s K-9 police dog, Berro, who exited Briones’s patrol car through the open driver’s side door.  Davis sued the City, claiming that Briones negligently left open the door to the patrol car (i.e. negligent use of a motor vehicle) and the dog is personal property negligently used resulting in an injury. The City filed a plea to the jurisdiction which the trial court denied and the City appealed.

The “emergency exception” provides that there is no waiver of immunity when a governmental employee is responding to an emergency. Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2) (West 2011). According to Officer Briones’s deposition testimony, he was still in his car when he noticed a tall man approaching, yelling, and waving his arms. Briones did not know which car the man had come from, and he testified that he repeatedly told the man to “get back,” but the man continued to approach. He exited the vehicle and continued to command the man to stop, but he did not comply. Officer Briones left the car door open when he exited resulting in Berro’s actions of exiting the car, moving to intercept, and biting the approaching man (who happened to be Davis). Davis did not deny that Briones told him to get back or that he was yelling as he approached.  He further argued that the emergency exception did not apply because there was a genuine issue of material fact regarding whether the situation was an emergency.

In his affidavit, Officer Briones averred that when Davis’s wife told him that the red car had tried to run them off the road, he determined that an emergency situation existed and that he should pull over the red car immediately. Davis acknowledges that Briones pulled over the red car because his wife told Briones it tried to run them off the road.  Briones established he was responding to an emergency situation and since Davis admitted the essential elements, the fact no one was arrested or used the term “emergency” does not create a factual dispute. Further, even if leaving the car door open was the “operation” of a vehicle, the evidence at most demonstrates that Officer Briones had a “momentary judgment lapse” in leaving the car door open which does not rise to the level of “recklessness” or “conscious indifference” needed to overcome the emergency exception. As a result, the trial court erred in denying the plea. The case was reversed and a dismissal rendered.

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Massengale and Justice Huddle. Opinion delivered by Justice Huddle. Attorneys for Appellant City of Houston are John B. Wallace and Mary Stevenson. Attorney for Appellee Davis is Richard W. Wilkinson, Jr.

County potentially liable for Texas Open Meetings Act violations

Riley v. Commissioners Court of Blanco County, NO. 03-11-00276-CV, (Tex. App. – Austin May 23, 2013)

This is a Texas Open Meetings Act (“TOMA”) violation case. The Blanco County Commissioners’ Court held three closed meetings which were tape recorded, after which the Commissioners met in open session and adopted a resolution authorizing the purchase of property. Riley was unsuccessful at obtaining copies of the recordings under the Texas Public Information Act and therefore filed suit alleging violations under TOMA seeking declarations, requesting mandamus and injunctive relief, and asking for copies of the recordings. The Commissioners and the County filed a plea to the jurisdiction for all claims which the trial court granted and Riley appealed.

The County asserted that the claims against it were barred by sovereign immunity because Riley alleged violations of law, which were ultra-vires acts and barred by City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). The Third Court of Appeals disagreed holding that the legislature waived immunity of the County via TOMA. The court then held that Riley’s declaratory judgment claims were redundant to the valid TOMA claims, so such claims were properly dismissed.  The County then asserted that the TOMA and mandamus claims were barred because they were not submitted to the County prior to filing suit under Tex. Loc. Gov’t Code Ann. § 89.004. The court determined that since Riley was not asserting a claim for monetary damages, §89.004 does not apply.  It also noted that a claim for attorney’s fees (which Riley did not seek) does not necessarily equate to a claim for monetary damages under that section.  The court reversed in part and affirmed in part.

If you would like to read this opinion click here.