Taxpayer lacked standing to challenge Houston drainage fee ordinance despite charter election invalidity

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Elizabeth C. Perez v. Sylvester Turner, et al., 01-16-00985-CV (Tex. App. – Hous. [1st Dist], Oct. 15, 2019)

This is a long standing/multi-opinion dispute challenging the City of Houston’s drainage fee ordinance. Prior summaries found here and here. In this substituted opinion (for an opinion issued in August of 2018), the First District affirmed the granting of the City’s plea to the jurisdiction.

Voters in the City of Houston adopted a dedicated charter amendment for a “Pay-As-You-Go Fund for Drainage and Streets.” It then adopted a regulatory ordinance. One source of funding was a charge imposed on properties directly benefitting from the drainage system. The ballot language for the charter amendment was originally held misleading and invalid. After several disputes from the subsequent ordinance occurred, Perez  brought this ultra-vires claim and sought a judgment declaring the drainage fee ordinance invalid (yet again); an injunction against the assessment, collection, and expenditure of taxes and fees pursuant to the ordinance; and reimbursement, “on behalf of herself and all other similarly situated persons or entities,” of taxes and fees assessed and collected pursuant to the ordinance and paid “under duress.”  The City filed a plea to the jurisdiction asserting Perez lacked standing because she had suffered no particularized injury separate from the public, which was granted. Perez appealed.

The prior judicial declaration that the Charter Amendment is void does not address the Drainage Fee Ordinance. Thus, to the extent that Perez’s claims are based on her allegations the prior opinions invalided the ordinance, such are misplaced. The charter amendment was only needed to shift a portion of ad valorem tax revenue from debt services and was not required for authority to pass a drainage fee ordinance. Local Government Code Chapter 552 provided independent authority for such an ordinance. Perez has pleaded that she paid “illegal” drainage fees, she has cited to no authority declaring illegal the Drainage Fee Ordinance. Further, Perez has to demonstrate she “suffered a particularized injury distinct from that suffered by the general public” by the drainage fees collected.  The municipal fees were assessed to property owners across the City. The payment of municipal fees, like the drainage fees assessed against Perez’s properties here and numerous other properties in the City, does not constitute a particularized injury. Taxpayer standing is an exception to the “particularized injury” requirement.  However, it is not enough for the plaintiff to establish that she is a taxpayer— the plaintiff “may maintain an action solely to challenge proposed illegal expenditures.” A litigant must prove that the government is actually expending money on the activity that the taxpayer challenges; merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough.  Perez asserts the fees were collected illegally.  However, she was unable to establish the City is actually making any “measurable, added expenditure” of funds on illegal, unconstitutional, or statutorily unauthorized activities. As a result, she is not entitled to taxpayer standing. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Lloyd and Justice Kelly. The attorneys listed for the City are Collyn A. Peddie and Patricia L. Casey.  The attorneys listed for Perez are Dylan Benjamen Russell, Andy Taylor  and Joseph O. Slovacek.

Developer properly pleaded claims County failed to maintain roadways, Fort Worth Court of Appeals says

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Wise County, et al v. Katherine Mastropiero02-18-00378-CV (Tex. App. – Fort Worth, August 9, 2019)

In this case, the Fort Worth Court of Appeals held that the district court had jurisdiction to hear a property owner’s claims the County must maintain roads in her subdivision.

Mastropiero (the developer) began to develop Prairie View Estates, a subdivision in Wise County. In Phase Two of the subdivision, the county refused to maintain the roadways. The plat described several roads and stated that the roads were “dedicate[d] to the public.” Mastropiero alleged that the owners, residents, and members of the public have used the roads continuously ever since. The final plat was then endorsed and filed in the County’s records.  Mastropiero asserted she did not have to file a maintenance bond after the  County accepted the roads but that the County was required to maintain the roads. She sued for a failure to maintain, and the County filed a plea to the jurisdiction, which was denied.

Article V, § 8 of the Texas constitution provides that the district court has supervisory jurisdiction to review certain actions of the County Commissioners Court. Mastropiero has alleged that the Commissioners Court failed to perform a clear statutory duty.  The County asserted it never “accepted” the dedication and thus has no statutory duty. Recording a map or plat showing streets or roadways does not, standing alone, constitute a completed dedication as a matter of law. But acceptance does not require a formal act; implied acceptance is also sufficient, including use of the roads by the public. The determination of whether a dedication has been accepted is a question of fact. As a result, from a jurisdictional standpoint, Mastropiero properly pleaded a cause of action against the County. Additionally, the suit against a single commissioner, but only in her official capacity, is the same as a suit against the County. A suit to compel prospective action is viable in an ultra vires suit, as is raised here.  The plea was properly denied.

If you would like to read this opinion, click here. Panel consists of Justices Birdwell, Bassel and Womack. Memorandum opinion by Justice Birdwell. The attorney listed for the County is James Stainton. Ms. Mastropiero appeared pro se.

Eastland Court of Appeals holds erroneously calling the police is a discretionary act exempting employees from ultra vires claims

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The University of Texas of the Permian Basin et al. v. Michael Banzhoff, 11-17-00325-CV (Tex. App. – Eastland, May 31, 2019).

This is an ultra vires and abuse of process case where there Eastland Court of Appeals held the University of Texas at Permian Basin (UTPB) retained governmental immunity.

UTPB hired Banzhoff as a golf coach but terminated him within a year. He was issued a criminal trespass notice not to attend UTPB sporting events. Shortly after his termination, Banzhoff was arrested at the Odessa Country Club for criminal trespass.  Banzhoff sued UTPB, the athletic director (Aicinena) and the interim coach who replaced him (Newman) alleging seven different causes of action. Aicinena and Newman moved to be dismissed under §101.106(e) of the Texas Tort Claims Act (TTCA) and UTPB filed a plea to the jurisdiction. The trial court granted the dismissal as to Aicinena and Newman, and partially granted UTPB’s plea. The trial court allowed the abuse of process and ultra vires claims to proceed. UTPB filed this interlocutory appeal.

As to the abuse of process claim, no waiver of governmental immunity exists for such a tort. To fall within the ultra vires exception, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”  Suits complaining of ultra vires actions must be brought against government officials in their official capacity and may seek only prospective injunctive remedies. In this case, UTPB—a governmental entity—is not a proper defendant to Banzhoff’s ultra vires claim. As to the individuals, the general allegations in the pleadings are insufficient to plead an ultra vires claim against Aicinena or Newman.  Further, Banzhoff failed to plead any facts that support a finding that Aicinena or Newman exceeded any delegated authority, did not perform a ministerial duty, or violated Banzhoff’s constitutional rights.  The court expressly noted the criminal trespass notice in the record was not issued by either Aicinena or Newman and that there was no specific allegation either man called the police regarding Banzhoff’s presence at the Odessa Country Club. However, even if the court were to take Banzhoff’s allegations as true, “he fails to explain how issuing a criminal trespass notice or calling the police—even if done erroneously—are anything but discretionary actions by Aicinena or Newman.”  As a result, the plea should have been granted in its entirety.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Willson and Wright, Senior Justice.   Memorandum Opinion by Chief Justice Bailey.  The attorneys listed for Banzhoff are Gerald K. Fugit and M. Michele Greene.  The attorneys listed for UTPB are Enrique M. Varela and Eric Hudson.

Texas Supreme Court holds navigation district retains immunity from suit by State, but ultra-vires claims against commissioners can proceed to trial

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Chambers-Liberty Counties Navigation District, et al. vs. State of Texas, 17-0365 (Tex. May 10, 2019)

This is an interlocutory appeal in a sovereign immunity/regulatory control case where the Texas Supreme Court held the Chambers-Liberty Counties Navigation District (“District”) retained immunity from suit against the claims brought by the State of Texas. However, the District’s commissioners were not immune from the ultra-vires claims.

The District leased part of a navigation stream to Sustainable Texas Oyster Resource Management, LLC (“STORM”) for specific oyster production. The Texas Parks and Wildlife Department (“Department”) asserted the Department had exclusive authority to regulate oyster production in Texas and sued the District to invalidate a lease issued to STORM.  In the 1950s, the State of Texas conveyed more than 23,000 acres submerged land to the District, which as become prime for oyster cultivation. After the lease was issued to STORM, the company sent no-trespass notices to holders of any oyster-production permits. These permits authorize a holder to “plant oysters and make private beds in public waters.”  STORM claimed exclusive use of the leased submerged land. While the District agrees the water above the submerged land belongs to the State, it asserts it owns the fee simple in the land and can lease its exclusive use. The Department sued the District to invalidate the lease and individual District commissioners for ultra-vires acts associated with the lease. The Department also sought monetary damages for “restitution.” The District and commissioners filed a plea to the jurisdiction, which was partially denied.

The Court first addressed the Department’s claim for monetary damages. It held that Under §311.034 of the Government Code (Texas Code Construction Act), the use of the term “person” in a statute does not waive immunity.  And while the Parks and Wildlife Code allows the Department certain rule making authority, the Department cannot waive immunity by rule which is not contained within the statute.  Since nothing in the applicable Parks and Wildlife Code waives immunity, no waiver for declaratory and monetary claims exists. The Department cannot circumvent the immunity by labeling a claim for monetary damages as “restitution.”    Next, the Court held an ultra-vires claim cannot be brought against the District. However, it can be brought against the commissioners. The Court held the Department properly pled the commissioners acted beyond their lawful authority by entering into the lease. The statute creating the District provided it “rights, privileges and functions” but only those conferred by law. Unlike a home-rule municipality which gets its power from the Texas Constitution, the District is a creature of statute and must look to the Legislature for its authority. Considering the entire regulatory system as a whole, the Court held the powers of the District are limited to navigation. While the statute allows the District to lease land and regulate marine commerce, the question of whether  oyster cultivation qualifies may be precluded when comparing the exclusive power granted to the Department. The Department shall regulate the taking and conservation of fish, oysters, and other marine life. The ultra-vires claims against the commissioners to prospectively enjoin the lease are permitted to go forward.  However, the Court was careful to explain that its holding only allows the State’s claims to go to trial, not whether the State will ultimately win on the present facts.

If you would like to read this opinion click here.  Opinion by Justice Blacklock. The docket page with attorney information can be found here.

DA allegedly terminated for refusing to withhold exculpatory evidence cannot bring Sabine Pilot cause of action

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Hillman v Nueces County, et al., 17-0588 (Tex. March 15, 2019)

This is an employment related suit where the Texas Supreme Court held the County was immune from a suit brought by a former assistant district attorney

Hillman, a former assistant district attorney, filed suit alleging that the County wrongfully terminated his employment because he allegedly refused his supervisor’s order to withhold exculpatory evidence from a criminal defendant charged with intoxicated assault. Specifically, a witness statement noting the Defendant was not intoxicated at the time of the assault. Hillman was terminated for failing to follow instructions, presumably related to the disclosure. Hillman sued.  The trial court dismissed the case and the court of appeals affirmed. Hillman filed the petition for review.

Hillman essentially brings a Sabine Pilot cause of action, which allows suit against an employer for terminating an employee who refused to perform an illegal act. However, historically, sovereign/governmental immunity is not waived for a Sabine Pilot cause of action. The Court declined to abrogate or clarify the lack of waiver. Alternatively, Hillman asserted immunity was waived under the Michael Morton Act (2017 legislative changes to Tex. Code Crim. Proc. § 39.14(h) on criminal discovery and disclosure). However, the Act does not address governmental immunity. It serves obvious purposes separate and apart from any wrongful-termination issues. Finally, Hillman requested the Court abrogate the immunity doctrine. The Court held that having existed for more than six hundred years, the governmental-immunity doctrine is “an established principle of jurisprudence in all civilized nations.” Although courts defer to the legislature to waive immunity, the judicial branch retains the authority and responsibility to determine whether immunity exists in the first place, and to define its scope. To hold that governmental immunity does not apply to Sabine Pilot claims, the Court would have to trespass across the boundary between defining immunity’s scope (a judicial task) and waiving it (a legislative task).  It declined to do so.

The concurring opinion agreed with the majority opinion, but Justice Guzman wrote separately to emphasize, to the Legislature, more is required if the purposes behind the Michael Morton Act are to have a full impact. But she agreed such additional actions must come from the Legislature.

If you would like to read this opinion click here.  Opinion by Justice Boyd.  Concurring opinion (found here) by Justice Guzman, joined by Justices Lehrmann and Devine.

Board of Adjustment’s plea on declaratory judgment claim granted as UDJA is a redundant remedy says Austin Court of Appeals

 

City of Wimberley Board of Adjustment v. Creekhaven, LLC; and William D. Appleman, 03-18-00169-CV (Tex. App. – Austin, October 18, 2018)

This is a board of adjustment appeal case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.

Campbell owns property next to Creekhaven and requested setback variances for construction of a pole barn which the Board of Adjustment granted with conditions. Creekhaven filed suit challenging the BOA’s order. While the trial court’s order in the case was pending, a deadline imposed by the order passed without Campbell having satisfied the requirements. According to the Board’s order, if Campell failed to comply by the deadline, the variance expired automatically. Campell filed a second variance request, which was also granted with the same conditions. Creekhaven amended its petition asserting the BOA had to make a determination on the first variance lapsing before granting a new variance. The BOA filed a plea to the jurisdiction as to the Uniform Declaratory Judgment Act (“UDJA”) claims which was denied. The BOA appealed.

The UDJA does not create a cause of action, but is a mechanism for adjudicating disputes already ripe. The UDJA waives immunity only to challenge the validity of an ordinance. It does not waive governmental immunity when the plaintiff seeks a declaration of rights under a statute or other law. Creekhaven seeks a declaration regarding the legal effect of the first variance. To the extent that Creekhaven’s request for a declaration that the variance has expired depends on a finding that Campbell failed to comply with various city ordinances by a certain date, it constitutes a request for a declaration interpreting those ordinances.  Therefore, no waiver of immunity exists. Creekhaven also tried arguing that its UDJA claim asserts ultra vires acts by the Board members such that governmental immunity does not bar the claim and are barred by res judicata.  However, the doctrine of res judicata, as an affirmative defense, would not deprive the BOA of authority to consider Campbell’s request for a variance. Thus, it would not render the BOA members’ actions ultra vires. Finally, to the extent Creekhaven’s UDJA claims seek to overturn the Board’s orders regarding the variances Campbell has requested, the doctrine of redundant remedies prevents it from seeking that relief. Its option is to pursue invalidation under Chapter 211 of the Texas Local Government Code. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Puryear and Justice Field. Memorandum Opinion by Justice Field. The attorneys listed for the City are Mr. Gunnar P. Seaquist  and Ms. Kelli Fuqua.  The attorney listed for the Plaintiffs is Mr. Jimmy Alan Hall.

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trial court properly awarded attorney’s fees to school district as plaintiffs should have reasonably known the individual officials were absolutely immune

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Farr et. al. v Arlington ISD, 02-17-00196-CV (Tex. App. – Fort Worth, July 19, 2018)

In this asserted ultra vires case, the Fort Worth Court of Appeals affirmed the granting of the school district defendants’ plea to the jurisdiction.

The Plaintiffs comprise of students, employees, and parents who asserted they were exposed to poor air quality at the school causing dizziness, nausea, and a host of other ailments. In addition to suing the school district, the individual board of trustees, the superintendent, and several private parties. They originally sued for negligence, gross negligence, and other claims, but after a host of court proceedings, the primary focus ended up centering on injunctive relief. The school district officials counterclaimed for attorney’s fees. They filed a plea to the jurisdiction and motion to dismiss which the trial court granted. The Plaintiffs appealed.

The court first held the Plaintiffs did not bring a true ultra vires claim. The Plaintiffs did not allege the individual school officials acted outside of their authority. Next, the court held the last live pleading omitted the claims against the officials in their official capacities. As a result, ultra vires injunctive relief is not applicable. Next, in the education context, attorney’s fees can be viewed as sanctions. Under a sanctions analysis the strictures of the loadstar method of calculations is not applicable. The record demonstrates sufficient evidence to support the sanction. Given the officials retain absolute immunity from suit, a reasonable attorney should have known a suit against them was improper.

If you would like to read this opinion click here. Panel consists of Justices Sudderth, Gabriel, & Kerr. Opinion by Justice Gabriel.

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.

Trial court had jurisdiction to determine if certain jobs should be classified as civil service, but not to award backpay

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-17-00120-CV (Tex. App. Amarillo — March 21, 2018)

This is a civil service lawsuit where the Amarillo Court of Appeals reversed-in-part the denial of the City’s plea to the jurisdiction.

In Amarillo, firefighter positions have civil service protection and firefighters are contained within the Fire Supersession Department. However, positions in the Amarillo Fire Marshall’s Office (“FMO”) have traditionally been treated outside the protection. Nurek and Stennett were the highest scoring individuals on the promotional exams for positions of an Investigator I (equivalent rank of lieutenant) and Investigator II (equivalent rank of captain) within the FMO. When they were not offered the positions, they sued to declare the positions subject to civil service protection (and therefore eligible for placement via promotional exam). They also sought instatement in the positions and the backpay. The City and the officials sued, filed a plea to the jurisdiction which was denied. They appealed.

Immunity bars a declaratory judgment action seeking a declaration of the government’s liability for money damages.  However, that only addresses the Plaintiffs’ claim for backpay. The court held jurisdiction exists for the trial court to examine the City’s failure to classify firefighter positions within the FMO as civil service positions.  Under §180.006 of the Texas Local Government Code, immunity is waived “for claims to recover monetary benefits that are authorized by a provision of…” the Act. However, the claims asserted do not specify the sections which would authorize the payment in the Plaintiffs’ pleadings. “While appellees may prove to be right regarding appellants’ erroneous classification of FMO positions outside of the civil service, it is clear that appellees have not affirmatively pled facts demonstrating that their claims for monetary benefits are authorized by a provision of the Civil Service Act.”  Further, the pleadings do not differentiate between acts of the City and any alleged ultra vires acts of individual officials. Nothing indicates where the City Manager is responsible for civil service job classification. The failure to allege enough jurisdictional facts to demonstrate the trial court’s jurisdiction gives rise to a right to amend the pleadings unless the jurisdictional defect may not be cured by repleading. As a result, part of the plea should have been granted and part was proper to deny, but amended pleadings should be ordered.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Campbell and Justice Parker. Opinion by Judge Parker. The attorneys listed for the City Defendants are William M. McKamie, Bettye Lynn and Bryan McWilliams.  The attorney listed for the Plaintiffs is Matt Bachop

State immune from suit asserting failure to follow forfeiture procedures

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The State of Texas v. Antonio Menchaca Jr. and Perla Nevarez 13-16-00602-CV (Tex. App– Corpus Christi February 15, 2018)

This is an interlocutory appeal from the denial of a plea to the jurisdiction where the 13th Court of Appeals reversed the denial and rendered in favor of the State.

A Cameron County District Attorney’s Office investigator sent notices to two banks that it was investigating potential money laundering by Menchaca  so the banks froze his accounts. Later, the State filed a civil forfeiture action against Menchaca seeking to seize one of Menchaca’s bank accounts. Menchaca subsequently answered and counterclaimed for declaratory judgment relief. Prior to answering Menchaca’s counterclaim, the State nonsuited its civil forfeiture action. The State then answered Menchaca’s counterclaim and filed a plea to the jurisdiction which the trial court denied. The State appealed.

Menchaca actually seeks ultra vires declaratory relief against the State of Texas for failing to comply with the law related to civil forfeitures. However, these types of suits cannot be brought against the State because the State retains its immunity. They must be brought against officials. “Menchaca’s action is defeated by sovereign immunity.”

If you would like to read this opinion click here. Panel consists of Justice Contreras, Benavides and Longoria. Justice Benavides delivered the opinion of the court. The attorney listed for Nevarez is Hon. Eduardo Lucio and Hon. Dennis Sanchez. The attorney listed for Menchaca is Hon. Dennis Sanchez and Hon. Eduardo Lucio. The attorney listed for The State of Texas is Hon. Luis V. Saenz, Hon. Matthew Kendall and Hon. Lena Chaisson-Munoz.

City did not act in bad faith under PIA in cost estimate calculation; City established it produced all records discovered

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Mark Rines v. City of Carrollton 05-15-01321-CV (Tex. App—Dallas, February 13, 2018)

This is a Texas Public Information Act (“PIA”) case where the Dallas Court of Appeals affirmed the trial courts order dismissing the Requestor’s lawsuit. [Comment: this case is a rare one which also deals with cost estimates and allegations of overcharging.]

Rines, the Requestor, filed a PIA request for the civil service files of fourteen specified police officers. The City requested an Attorney General (“AG”) opinion for some documents, and issued a cost estimate letter for the remainder. After production of the uncontested documents, the City refunded some of the costs paid bythe Requestor. After receipt of the AG opinions, Rines filed suit asserting the City acted in bad faith in providing a cost estimate letter and that the City did not comply with his request. The City filed a plea to the jurisdiction which included an evidentiary hearing with testimony. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Rines appealed.

The City’s testimony included how specific City employees conducted searches for records and the results. The City established it produce all records it located which were not contested under the AG opinion request. Rines asserts documents still exist and are missing which must be produced. He also objected to the testimony of record officials who did not have personal knowledge of the records being searched. However, the testimony established the record retention individuals’ job duties entailed custodial functions of the records. Further, Rine’s objection during the hearing was not ruled upon, so provides the appeals court nothing to review. In general, the City’s jurisdictional evidence demonstrates it searched for the requested information, officially requested responsive documents from relevant individuals, and produced to appellant all responsive information it was able to locate and obtain. Rines produced no evidence as to what was missing or that it was within the City’s records. The City conclusively established it complied with release under the Act.  Rines further did not provide evidence the City’s initial computation for the cost estimate was inaccurate based on the information available at the time. He provided no evidence of how the computation occurred and what was considered. After release, the City refunded monies based on the actual numbers released, but such factored in the non-release of information discovered but subject to the AG opinion.  Nothing indicates the City did not act in good faith in its initial calculation. Simply because the end cost is different does not equate to bad faith.

If you would like to read this opinion click here. Panel consists of Justices Lang, Brown and Whitehill. Justice Lang delivered the opinion of the court. Mark Rines appeared pro se. The attorneys listed for the City are Darrell G-M Noga and Christopher Klement.

Dallas Court of Appeals disagrees with El Paso Court of Appeals and holds civil service commission dismissal of grievance is still subject to appeal to district court

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Rodney D. Bailey v. Dallas County, et al.,  05-16-00789-CV (Tex. App. – Dallas, December 21, 2017)

This is a county civil service case where the Dallas Court of Appeals affirmed-in-part and reversed-in-part the County Defendants’ plea to the jurisdiction filed in a district court case challenging his termination.

Bailey was a Dallas County Deputy Sheriff who was indicted for sexual assault and suspended from active duty.  Bailey timely filed a grievance challenging his termination.  Before the Civil Service Commission (“Commission”) held a hearing, the County dismissed the charges against Bailey.  Once the hearing was set, the County requested that the Commissioners dismiss Bailey’s grievance because he did not request a hearing within thirty days of the dismissal of the indictment, which the County asserted was required by §5.02(2) of the Dallas County Sheriff’s Department Civil Service Rules.  The Commission granted the motion. Bailey then filed suit in district court under §158.037 of the Texas Local Government Code, which allows for an appeal from a  Commission order removing him or demoting him. He also brought declaratory judgment claims asserting the Commission’s rules were void and the Commission acted in an ultra vires manner.  The County Defendants filed a plea to the jurisdiction, which the trial court granted. Bailey appealed.

The County Defendants asserted the Commission’s order did not demote or remove him but was simply a dismissal of the appeal. However, this has the effect of leaving the Sheriff’s removal in place. The court noted County of El Paso v. Zapata, 338 S.W.3d 78 (Tex. App.—El Paso 2011, no pet.) expressly supported the County Defendants’ position. However, the court disagreed with the El Paso Court of Appeals, thereby causing a split in the districts. The Commission’s dismissal supported the Sheriff’s removal and therefore §158.037 was applicable. Next, the court analyzed the UDJA claims. Ultra vires claims under the UDJA are prospective only. Bailey clearly is seeking retrospective relief under the UDJA, which is not permitted. Bailey’s request for a prospective hearing would require the retrospective setting aside of the prior order of dismissal. Bailey’s pleadings also do not actually seek the invalidity of a Commission rule or state statute. He asserts the Commission injected provisions which are not contained within the state statutes. These are complaints about the applicability and construction of the sections, not that they are invalid.  Bailey sought a writ of mandamus ordering the County to provide him a Commission hearing. The court disagreed the Commission had the discretion to provide Bailey a hearing. Officials have no discretion to misapply the law. As a result, the court had jurisdiction to hear Bailey’s mandamus claim to a hearing, even though it has a retrospective effect. Finally, the County asserted the Commission was not a separate jural entity subject to suit. Whether the Commission has a separate and distinct legal existence is a jurisdictional fact question. The County has the burden in a plea.  It presented no evidence the Commission does not have a separate and distinct legal existence.  The court, in a footnote, stated it expressed no opinion as to what the ultimate result of the analysis would be once evidence is submitted, only that the trial court had jurisdiction to consider the issue.

If you would like to read this opinion click here. Panel includes Justice Bridges, Justice Myers and Justice Schenck.  Memorandum Opinion by Justice Myers. The attorney listed for Bailey is Lance Franklin Wyatt.  The attorney listed for the County Defendants is Tammy Jean Ardolf.

El Paso Court of Appeals holds non-appearance jurors failed to show waiver of immunity in contempt/fee challenge case but should be allowed to amend.

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Joshua Luttrell, et al v. El Paso County, et al., 08-16-00090-CV (Tex. App. – El Paso, December 20, 2017).

There is no way to categorize this case in a single sentence. In the thirty-nine page opinion, the El Paso Court of Appeals addressed a challenge to El Paso County’s use of a special assignment judge who would issue and handle all contempt proceedings when a juror would fail to appear for duty. Long opinion means long summary — sorry.  The Court held the County retained immunity based on the pleadings, but the Plaintiff should be afforded the opportunity to amend. The case was remanded.  For government attorneys or those suing governments, this opinion provides a good basis and starting point for various immunity issues and Uniform Declaratory Judgment Act (“UDJA”) claims.

Appellants filed a lawsuit on behalf of themselves and others, naming Judge Woodard and El Paso County, requesting a declaration that their contempt judgments were void for lack of jurisdiction and that Judge Woodard imposed court costs and fees in an “illegal” manner.  Apparently, when a juror failed to respond to a jury summons in a particular court in El Paso County, that court would either “refer” or “transfer” the matter to Judge Woodard for the purpose of allowing him to conduct contempt proceedings against the recalcitrant juror.  The collective jurors sought to have their court costs and fees removed and the process stopped.  The case has many implications and court performed various analyses of statutes discussing the power of the courts and the counties. By the time the case hit the Court of Appeals, Judge Woodard had been dismissed under judicial immunity and the only issue was the immunity of the County. The County filed a plea to the jurisdiction, which the trial court granted. The collective jurors appealed.

The court began with a history of governmental immunity and transitioned into immunity in declaratory judgment proceedings. The court cited various cases noting the UDJA only waives immunity if the validity of a statute (or ordinance) is in play. The Appellants failed to identify a statute being challenged. Their pleadings “reveal that the true nature of their claims center on their belief that the actions of Judge Woodard and/or the County violated existing law, i.e., that they were held in contempt in violation of their due process rights, and that they were accessed illegal court costs and fees…”  Such claims cannot be brought under the UDJA. Additionally, the UDJA may not typically be used to collaterally attack, modify, or interpret a prior court judgment. The contempt proceedings were declared to be criminal in nature, not civil. Civil courts may only exercise “equity jurisdiction” in cases involving criminal proceedings in a “narrow” set of circumstances, which are not present here. The UDJA is the wrong vehicle for making a challenge to the validity of a criminal contempt judgment.   There is a line of cases stating the UDJA can be used to collaterally attack void judgments. The proper method to collaterally attack a criminal contempt judgment as being void is through either a petition for a writ of habeas corpus when the contemnor has been subjected to jail time, or a petition for a writ of mandamus when, as here, the contemnor is subjected only to a fine. Such are exclusive mechanisms.

Appellants also sought the recovery of the fines, fees and costs, which they believe Judge Woodard wrongfully imposed.  However, Appellants’ request for a “refund” cannot be brought in a UDJA proceeding in the absence of legislative permission. When fees are paid in the context of a judicial proceeding, the aggrieved party may challenge the imposition of those fees (illegal or otherwise) in the context of those proceedings, thus satisfying the requirements of due process.  When a party pays an illegal tax or fee “under duress” in an administrative matter they may challenge it, but these were judicial proceedings. In a judicial proceeding, once a defendant pays the fee, it is voluntarily given. To avoid paying the fee, the defendant must challenge it in the proceedings or utilize another system established for the challenge.  Appellants had other means of challenging the validity of the costs and fees imposed on them. They could have challenged it in the proceedings, filed a mandamus or brought claims under Article 103.008 of the Texas Code of Criminal Procedure, which provides a separate statutory remedy to correct erroneous or unsupportable court costs.  They failed to do so.  As to Appellants attempted ultra vires claim, they only named the County. Such claims must be brought against an official.    Additionally, claims of judicial court action versus county administrative action, falls outside the scope of any takings claims under the Texas Constitution. As to the Appellants §1983 claims, a judge has judicial immunity from a lawsuit brought under §1983, and therefore cannot be named as the “person” who violated the plaintiff’s constitutional rights, when the lawsuit is based on the judge’s judicial actions.  A county may only be held liable in a §1983 case if the plaintiffs are able to demonstrate that the county had an “official policy or custom” that caused them to be subjected to a denial of a constitutional right.  Appellants have not alleged in their current pleadings that the County had any policy or custom that deprived them of their federal constitutional rights and only allege Judge Woodard acted without authority. There is nothing in the pleadings or the record to suggest that Judge Woodard was executing any county policies and, to the contrary, everything points to him acting in his judicial capacity (for which he is immune from suit).  Finally, the  court noted that while the panel “expresses no opinion” as to whether the Appellants can successfully amend, they recognized the should be given the opportunity. The court ends by stating “[w]e do caution Appellants, however, that any amendment to their pleadings must focus on the liability of the County as the only remaining party in the proceeding, with the recognition that Judge Woodard is no longer a party to the proceedings, and expressly explain what actions the County took that would render them liable to Appellants.”   The case was then remanded.

If you would like to read this opinion click here. Panel includes Chief Justice McClure, Justice Rodriguez and Senior Judge Larsen. Opinion by Justice Rodriguez.  The docket page with attorney information is found here.

Plaintiff failed to timely appeal administrative order so court has no jurisdiction to hear his constitutional claims

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Jose A. Perez v. Physician Assistant Board and Margaret K Bentley, In her Individual and Official Capacities 03-16-00732-CV (Tex.App—- Austin, Texas October 31, 2017)

This is an appeal from the granting of a plea to the jurisdiction where the Austin Court of Appeals affirmed the order.

Perez was a physician’s assistant whose license was revoked by the Physician Assistant Board (“PAB”). Perez sued for a variety of convoluted claims (constitutional and common law) which the Austin Court of Appeals held equated to claims challenging the revocation. At the administrative level, Perez failed to appear at the contested case hearing after receiving notice. The ALJ issued an order against Perez. The PAB found the order meritorious and deemed the assertions in the order as true. Perez sued the PAB and its director, Bentley. The PAB defendants filed a plea to the jurisdiction which the trial court granted. Perez appealed.

Perez listed 36 issues on appeal, but the court considered only the uncontested facts asserted in the record and Perez’ pleadings. The substance of Perez’s pleaded claims against the Board—that the Board violated the United States and Texas constitutions and the APA—challenges and seeks relief from the 2014 revocation order. However, there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.  Perez had the potential for appeal, but a petition seeking judicial review in a contested case must be filed “not later than the 30th day after the date the decision. The record conclusively established Perez did not bring suit until 2016, well after the thirty-day deadline.  Further, the order is not subject to collateral attack as the PAB was acting within its authority. Factually, the substance of Perez’s claims against Bentley were limited to claims against Bentley in her official capacity, even though he asserts they are individual claims. Given that the 2014 order is final and not subject to judicial review, Bentley cannot be acting ultra vires and no prospective relief is available at this juncture. As a result, the trial court properly granted the plea.

If you want to read this opinion, click here. The panel consists of Justice Puryear Justices, Pemberton, and Goodwin. Justice Melissa Goodwin delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

Texarkana Court of Appeals holds the vote and decision not to vote on District business cannot be an ultra vires claim

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Kilgore Independent School District, et al. v. Darlene Axberg, John Claude Axberg, Sheila Anderson, and the State of Texas 06-17-00060-CV (Tex.App— Texarkana, October 12, 2017)

This is an appeal from the denial of a plea to the jurisdiction where property owners brought ultra vires and invalidity claims arising from the school district’s repeal of a homestead exemption. The Texarkana Court of Appeals reversed-in-part and affirmed-in-part.

Kilgore Independent School District (“KISD”) voted to repeal KISD’s local option homestead exemption (“LOHE”). That repeal came just fourteen days after Governor Greg Abbott signed Senate Bill No. 1 (“SB1”), which could potentially increase the statewide homestead exemption and forbid a local taxing authority from repealing existing LOHEs. SB1 raised the level of property values on which a school district is not allowed to tax from the first $15,000 to the first $25,000. Property owners sued alleging KISD’s repeal was invalid because it violated state law, that taxes subject to the LOHE had been illegally collected, and that KISD officials committed various ultra vires actions. KISD and the officials filed a plea to the jurisdiction, which the trial court denied. The KISD Defendants appealed.

It is not an ultra vires act for an official to make an erroneous decision while staying within its authority.  When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous. It is only when these improvident actions are unauthorized does an official shed the cloak of the sovereign and act ultra vires.  If the conduct is based on the misinterpretation of the boundaries of his authority, it can give rise to an ultra vires claim.  As to the superintendent of schools, the Plaintiff failed to plead and support an ultra vires claim.  The superintendent could not and did not vote on the repeal and was improperly included merely because she was the head of the district.  Additionally, the Plaintiff failed to plead proper ultra vires claims against the Trustees. The vote or nonvote of an individual Trustee, by definition, cannot be an ultra vires act since their entire authority is to vote on district business.  But the Board is the body which makes the determination and it is the collective decision which is the act of KISD. Without the authorization of the Board, a single Trustee lacks the authority to repeal or reinstate the LOHE. The act of voting, or refraining from voting, by the Trustees as a collective body, was not outside the Trustee’s authority in this case.  However, as to KISD, the court held it was not immune from the Plaintiff’s suit. Sovereign immunity does not apply when a suit challenges the constitutionality or validity of a statute or other government enactment and seeks only equitable and/or injunctive relief.  And while a party cannot circumvent immunity by disguising a claim for money damages as a declaratory judgment action, immunity will not defeat a claim seeking the refund of illegally collected taxes or fees paid under duress. Further, the Plaintiff was not required to exhaust administrative remedies under the Tax Code because all questions in the lawsuit are questions of law. Finally, the Plaintiff was not barred by an election of remedies because the ultra vires claims against the officials and the claims against KISD are distinguishable and separate from one another.  As a result, the plea should have been granted as to the officials and denied as to KISD.

If you would like to read this opinion click here. The panel consists of Chief Justice III Morris and Justices Moseley and Burgess. Chief Justice III Morriss delivered the opinion of the court.  To see the attorneys listed for the Appellant and Appellee’s click here .