Amarillo Court of Appeals holds fire marshal’s office employs firefighters who are entitled to civil service protection

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-20-00315-CV, (Tex. App – Amarillo, Nov. 18, 2021)

This is a civil service case where the Amarillo Court of Appeals affirmed in part and reversed in part a trial judgment holding the fire marshal’s office was entitled to civil service protection.

Plaintiffs sued the City and various officials trying to hold the Amarillo Fire Marshal’s Office (“FMO”) should be classified as a civil service position.  In the City, firefighters are classified positions, but the FMO is not classified.  As such, employees within the FMO are civilians who are not afforded civil service protections. The FMO performs fire prevention duties such as checking building plans, inspecting businesses, and investigating suspicious fires. FMO employees are certified by the Texas Commission on Fire Protection. Following a bench trial, the trial court entered a final order declaring that positions within the Amarillo FMO are civil service positions, but denied the promotional relief sought. The trial court ruled the firefighter’s association (“Association) was the necessary real party in interest, not the individual Plaintiffs and the claims were therefore precluded.

Both parties agree that the determination of whether a particular position is a “fire fighter” position depends on whether the position meets the definition identified in Texas Local Government Code section 143.003(4).  The City’s argument appeared to turn on whether the position was one of “fire suppression” and not other duties. The express language of section 419.032 distinguishes “fire protection personnel” from “fire suppression.”  The testimony established  FMO positions require substantial knowledge of firefighting. The trial court heard evidence that the FMO was moved within the Amarillo Fire Department in 1989, the FMO is part of the Fire Department for budgeting purposes, and the FMO is listed as part of the Fire Department within the City’s Organizational Structure. As a result, the trial court properly determined the position should be classified as a firefighter. Next, the City actively argued that the association lacked standing to participate in the case and Plaintiff’s agreed. The court did not see any basis for the trial court holding the association’s inaction established the defenses of laches, estoppel, or limitations. The trial court also made findings that the City proved that using non-classified employees in FMO positions was motivated by good faith, was more satisfactory to the public, and was based on more than monetary savings.  However, the standard requires that the City provide a good-faith reason to justify the use of non-classified personnel over civil servants, rather than assessing the qualifications of particular individuals to serve in those positions. Therefore, the City is not entitled to a good-faith defense for the use of non-classified personnel.   And while the court of appeals found the Plaintiff’s general relief was not precluded, the trial court did not consider the entitlement on the merits. As a result, certain relief matters were remanded.

Panel consists of Chief Justice Quinn, and Justices Parker and Doss. Affirmed, reversed, and remanded to trial court. Opinion by Justice Parker can be read here. Docket page with attorney information found here.

Fourth Court of Appeals upholds injunction preventing Governor from prohibiting ordinances regulating face masks – Governor’s authority does not extent to local health and safety regulations with separate grants of authority

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Greg Abbott, in his Official Capacity as Governor of Texas, and State of Texas v. City of San Antonio and County of Bexar, 04-21-00342-CV (Tex. App. – San Antonino, November 10, 2021).

This is a COVID-19 declaratory judgment (ultra vires) action brought against Texas Governor Gregg Abbott where the Fourth Court of Appeals held the Governor does not have the power to prevent certain local regulations during a disaster.

Bexar County and the City of San Antonio sued Governor Abbott after the Governor signed Executive Order GA-38, which provides, with some exceptions, that: “No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face-covering or to mandate that another person wear a face covering . . . .”  The local entities sued asserting the order exceeded the Governor’s authority. The trial court issued a temporary injunction order enjoining the enforcement of certain provisions of Executive Order GA-38 disallowing local governmental entities from requiring individuals to wear face coverings. The Governor filed an interlocutory appeal.

The City and County’s ultra vires claim requires construction of the Texas Disaster Act.  The entities have different powers, but both have the ability to adopt reasonable rules and regulations to protect public health. These powers are granted to the entities at all times and are especially relevant during times of disaster. The Governor invoked § 418.016(a) of the Texas Government Code as support for his authority. Under the section, the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”  After analyzing the language the Fourth Court held the statutes the Governor purports to suspend are not “regulatory statutes,” subject to suspension under the Act.  Regulatory statutes “prescribe the procedures” for the conduct of state business, such as procedures for the proper return of mail-in ballots.  The statutes do not address state-level procedure or business; instead, they are “grant-of-authority statute[s] giving local authorities the leeway to act in their best independent judgment within the confines of their own jurisdictions.”  Further, the Governor may only suspend regulatory statutes proscribing procedures for state business. The health and safety laws at issue are not procedural but  grant authority to local governments to act on matters of local public health and do not pertain to “state business.” It would “strain credulity to suppose the Legislature intended to abdicate its legislative prerogative, beyond the narrow regulatory and procedural matters specified, and permit the Governor to suspend all legislated grants of local authority on matters of public health without stating so directly.”  The court then examined the injury elements in the interim, the status quo elements of an injunction, and standing of the local entities. In the end, the court held the local entities were entitled to legally seek a temporary injunction and such injunction was proper under the standards indicated in the rules.

If you would like to read this opinion click here. Panel consists of Chief Justice Martinez, Justice Chapa and Justice Rios. Opinion by Chief Justice Martinez. The docket page can be found here.

 

First Court of Appeals holds 380 development agreement was an agreement for goods and services (waiving immunity) but dismissed all other claims brought against the City by the developer

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Town Park Center, LLC v. City of Sealy, Texas, Janice Whitehead, Mayor, Lloyd Merrell, City Manager and Warren Escovy, Assistant City Manager, 01-19-00768-CV, (Tex. App – Hou [1st], Oct. 28, 2021)

In this contract dispute, the First Court of Appeals in Houston affirmed in part and reversed in part the City’s plea to the jurisdiction. This is the third lawsuit involving the parties and underlying dispute.

Town Park Center and the City executed a “380” Economic Development Agreement (“the EDA”) to develop a commercial shopping center on Town Park’s property. Town Park Center agreed to develop and construct the shopping center according to a development plan that the City had approved. The City agreed to pay annual economic development grant payments (based on sales tax collections) to Town Park Center “as an incentive to comply with this Agreement.” Town Park Center first filed suit against the City and officials, asserting breach of contract and other claims. The basis was an assertion the EDA required the City to sell stormwater detention capacity to Town Park and failed. The City filed a plea to the jurisdiction, which was granted as to the city but not the individual officials. The officials appealed but Town Park non-suited. Town Park then filed a second suit against other officials, but which was otherwise identical.  Town Park later non-suited, only to file a third suit seeking mandamus, declaratory, injunctive relief, takings, ultra vires claims and claims under the “vested rights provision” of Local Government Code chapter 245. The factual allegations were nearly identical to the first and second suit. The City filed a plea to the jurisdiction and argued immunity as well as res judicata “ish” arguments. The trial court granted the plea and Town Park Center appealed.

The court noted that res judicata is an affirmative defense and could not be raised in a plea to the jurisdiction. It declined to consider the arguments through the lens of a summary judgment noting the trial court consideration lacked the hallmarks of a true summary judgment proceeding, including the required 21 days’ notice of a hearing date. However, the City also raised immunity defenses. The court held the EDA constituted a contract for goods or services which can trigger a waiver of immunity. The EDA included a provision for Town Park Central to build and dedicate a road to the City as part of the development, which therefore constitutes a service.  The trial court therefore erred in granting the plea as to the breach of contract claim. However, as to the Chapter 245 vested rights claim, Town Park Center did not identify any City order, regulation, ordinance, rule, or other requirement in effect when its rights in the project vested that mandates the sale of the capacity at issue. With no change in order or rule, Chapter 245 is inapplicable. As to Town Park’s takings claim, it failed to establish the City’s refusal to allow the purchase of detention capacity deprived them of the beneficial use of the property. Specifically, the court noted Town Park Center finished the development and sold it to host a grocery store. The City, therefore, did not deprive it of all economic use of the property. As to the ultra vires claims, the court first chastised the parties for failing to follow proper pleadings rules, making the determination more difficult on the court, specifically by labeling various amended pleadings as supplemental pleadings. Considering the pleadings as filed, the court held the City officials ended up joining the City’s plea as part of a supplement (without objection from the other side). Merely failing to comply with a contract does not give rise to an ultra vires claim.  While Town Park Central points to a city resolution allowing for detention capacity purchases, it does not mandate the sale of detention capacity. It instead only provides that the City may sell detention capacity, which is discretionary. As a result, the ultra vires claims were properly dismissed.

In short, the court reversed the dismissal of the breach of contract claim, ultimately affirmed the dismissal of all other claims, and remanded for trial.

Panel consists of Justices Kelly, Guerra, and Farris. Opinion by Justice Farris can be read here. Docket page with attorney information found here.

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices

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Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

If you would like to read this opinion click here. Panel consists of Justices Chapa, Rios, and Rodriguez. Memorandum opinion by Justice Rodriguez.

Trespass to try title claims failed to waive immunity, but court remanded to allow further pleading attempts

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City of San Antonio v. Albert Davila, Individually; Madeline Davila, Individually; and Albert Davila as Trustee of the Albert Pena Davila and Madeline Davila Living Trust, 04-20-00478-CV, (Tex. App – San Antonio, August 4, 2021)

This is a trespass to try title case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction but remanded to allow Plaintiff the ability to replead.

The Davilas sued the City in a trespass to try title action. The Davilas alleged that, as part of closing and abandoning 12th Street and conveying parcels to adjoining landowners in 1987, the City deeded the subject property to the Davilas’ parents. Alternatively, they allege they adversely possessed the property. The City filed a plea to the jurisdiction asserting the City issued a quick claim deed to Davila’s parents and the deed recites the City passed an ordinance authorizing the sale of the property to the Davilas’ parents. The quitclaim deed also contains a metes-and-bounds description of the subject property and reserves a utility easement. The trial court denied the plea and the City appealed.

When a city is sued in a trespass to try title action based on adverse possession, governmental immunity is not waived, and the trial court lacks subject matter jurisdiction. As a result, the claims, as alleged, do not waive immunity. The Davilas argue section 16.005 of the Texas Civil Practice & Remedies Code waives the City’s governmental immunity, which relates to road closure ordinances. The Davilas did not request relief from the City’s ordinance under Chapter 16, which authorized the sale or abandonment of property, but from the quitclaim deed itself. It does not waive immunity. However, the plea attacks the pleadings only. The City’s brief does not argue or explain why the pleading defect—suing the City instead of government officials for ultra vires acts—is incurable. As a result, the Davilas must be given the opportunity to amend their pleadings.

Panel consists of Chief Justice Martinez, and Justices Chapa and Valenzuela. Reversed and remanded. Memorandum Opinion by Justice Chapa can be read here. Docket page with attorney information found here.

 

San Antonio Court of Appeals held City park and airport police could proceed with declaratory claims to establish collective bargaining rights

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City of San Antonio and Erik Walsh, in his Official Capacity v. San Antonio Park Police Officers Association, et al, 04-20-00213-CV, (Tex. App – San Antonio, July 14, 2021).

This is a civil service/collective bargaining suit where the San Antonio Park Police Officers Association (“SAPPOA”) sought declaratory relief for three distinct issues related to the legal classification of San Antonio’s park and airport police officers. The San Antonio Court of Appeals affirmed in part and reversed in part the City’s plea to the jurisdiction.

The SAPPOA argued that San Antonio’s park and airport police officers are “police officers” entitled to collectively bargain with the City of San Antonio (“City”) under chapters 174 and 143 of the Texas Local Government Code.  The court explained  Chapter 174 provides a limited waiver of immunity as follows: “This chapter is binding and enforceable against the employing public employer, and sovereign or governmental immunity from suit and liability is waived only to the extent necessary to enforce this chapter against that employer.” Tex. Loc. Gov’t Code Ann. § 174.023.  SAPPOA clearly alleged a violation of their right to collectively bargain under Chapter 174. The court held that these factual allegations were sufficient to establish the subject matter jurisdiction of the court.

However,  SAPPOA did not allege or argue that chapter 143 provides for a waiver of immunity for their declaratory judgment claim. The court held  SAPPOA did not request a declaration concerning the validity of chapter 143, but instead sought a declaration as to the park and airport police officers’ rights under this chapter. Thus, the court held that the UDJA does not waive the City’s immunity with respect to their declaratory claim pursuant to chapter 143.

Finally, the court held that SAPPOA alleged sufficient facts that, if taken as true, would confer standing for their ultra vires claims.

Panel consists of Chief Justice Martinez, and Justices Rios and Watkins. Reversed in part, Rendered in part, and Affirmed in part. Memorandum Opinion by Chief Justice Martinez can be read here. Docket page with attorney information found here.

Amarillo Court of Appeals holds committed individual cannot challenge commitment or conditions through secondary suit

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James Richards v. Marsha McLane, in Her Official Capacity as Director of the Texas Civil Commitment Office, 07-20-00306-CV, (Tex. App – Amarillo, July 6, 2021)

This is a declaratory judgment/ultra vires type case where the Amarillo Court of Appeals affirmed the granting of the Director’s plea to the jurisdiction.

Richards sued the director of the Texas Civil Commitment Office involving his commitment orders for being a sexually violent predator. The Director filed a plea to the jurisdiction, which was granted. Richards appealed.

Section 841.082 of the Texas Health and Safety Code provides that the court civilly committing someone as a sexually violent predator “retains jurisdiction of the case with respect to a proceeding conducted under . . . subchapter [E of the statute], . . . or to a civil commitment proceeding conducted under Subchapters F and G.” TEX. HEALTH & SAFETY CODE ANN. § 841.082(d) (West Supp. 2020).  The Court examines the claims based on the nature of the facts asserted and not the labels placed upon them by the pleading party. When reviewing the pleadings, the court held Richards actually challenged the legitimacy of his confinement for inpatient services. Richards sought to obtain less restrictive housing and supervision through the suit, thereby countermining the committing court’s jurisdiction. Further, since the housing requirements apply upon the “release” of an individual, and Richards has yet to be released, the challenge is not yet ripe.

Panel consists of Chief Justice Quinn, and Justices Pirtle and Parker. Affirmed. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

Amarillo Court of Appeals holds Texas Attorney General immune from County’s claims regarding conceal handgun signs

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Ken Paxton, Texas Attorney General v. Waller County Texas; et al, 07-20-00297-CV, (Tex. App – Amarillo, March 4, 2021)

This is a conceal/carry notice case where the Amarillo Court of Appeals reversed the denial of the Texas Attorney General’s plea to the jurisdiction and dismissed the case.

The Waller County Courthouse has a sign noting a person cannot carry any weapons, including knives and guns, in the courthouse. Section 411.209 of the Government Code prohibits a political subdivision from posting notices barring entry to armed concealed-handgun license holders unless entry is barred by statute.  Terry Holcomb filed a complaint with the County regarding the sign. The County did not remove the sign and instead sued the Texas Attorney General seeking a declaration the signs do not violate §411.209, which was resolved in a prior case. Separate from the declaratory judgment action, the Texas Attorney General brought a mandamus action against Willer County and various county officials. Waller County filed counterclaims seeking declarations. The AG filed a plea to the jurisdiction as to the counterclaims which was denied. The AG appealed.

The Uniform Declaratory Judgments Act (“UDJA”) is not a grant of jurisdiction, but rather is a procedural device for deciding cases already within a court’s jurisdiction. The UDJA does not allow “interpretation” claims against a governmental entity or official.  The County’s counterclaims seek interpretation of §411.209, not its invalidation. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. To sue the AG for ultra vires claims, the AG must not be exercising his discretion. Because the AG has discretion to bring or not bring an enforcement claim, no ultra vires action is possible.  Section 411.209 of the Government Code authorizes the Attorney General to investigate alleged violations of the statute and decide whether further legal action is warranted. When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous; “[o]nly when these improvident actions are unauthorized does an official shed the cloak of the sovereign and act ultra vires.” As a result, the counterclaims should be dismissed.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, and Justice Pirtle and Parker. Reversed and Remanded to Trial Court. Opinion by Justice Parker. Docket page with attorney information found here.

El Paso Court of Appeals held Governor’s executive orders control over county judge order in the event of conflicts

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State of Texas, et al v. El Paso County, Texas, et al., 08-20-00226-CV (Tex. App. – El Paso, Nov. 13, 2020).

This is an interlocutory appeal from the denial of the temporary injunction involving a conflict between the county judge’s executive order and the Governor’s executive order.  The El Paso Court of Appeals reversed the denial.

The Governor’s executive order GA-32 allows bars and open with reduced capacity in October of 2020. After the County had a surge in COVID-19 cases, El Paso County Judge Ricardo Samaniego issued an executive order including a stay at home mandate and eliminating social gatherings not confined to a single household. While it listed several permitted essential services, bars were not included and restaurants could only allow curbside pickup.  The State and a collection of restaurants sued the County and the judge asserting the order was contrary to the Governor’s order. They sought a temporary injunction to prevent enforcement of the County Judge’s order, which the trial court denied. Plaintiffs appealed.

The court first wanted to make clear that it was not deciding on the wisdom of either order, only the statutory construction provision as to which controlled over the other. The Governor’s order contains a preemption clause countermanding any conflicting local government actions, but the County order states any conflict requires the stricter order to apply. County judges are deemed to be the “emergency management director” for their county. The Texas Disaster Act contemplates that a county judge or mayor may have to issue a local disaster declaration and has similar express powers to those issued to the Governor. However, a county judge is expressly referred to as the “agent” of the Governor, not as a separate principle. Further, even if the County judge had separate authorization, the Legislature has declared the Governor’s executive order has the force of law. State law will eclipse inconsistent local law. Additionally, the Act allows the Governor to suspend the provisions of any regulatory statute within an executive order, which would include the County order.  The court then analyzed the standards for a temporary injunction and held the trial court erred in denying the injunction.  Finally, the court concluded by stating how essential the role of a county judge is when managing disasters and emergencies and that their opinion should not be misunderstood. The Governor’s order only controls over conflicts, and any provision of the County order which can be read in harmony remains enforceable.

Justice Rodriguez’s dissent opined that the Governor exceeded the authority provided by the Disaster Act. In his view, “the Governor has taken a law that was meant to help him assist local authorities by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities as a bureaucratic obstacle to…”  a once-size-fits-all coronavirus response plan.

If you would like to read this opinion click here. The dissent by Justice Rodriguez is found here. Panel consists of Chief Justice Alley, Justice Rodriguez and Justice Palafox.  Opinion by Chief Justice Alley.

Austin Court of Appeals holds that under the Civil Service Act applied to police officers, a reinstatement list must factor in seniority in the position being demoted and not seniority in the department

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Bradley Perrin v. City of Temple, et al, 03-18-00736-CV, (Tex. App – Austin, Nov. 6, 2020)

This is an employment dispute in a civil service police department with crossclaims and a host of procedural matters. The Austin Court of Appeals ultimately held the Plaintiff was entitled to the promotional position of corporal.

Perrin and Powell were serving as police officers for the City and took the written examination for promotional eligibility to the rank of corporal.  Five officers passed, including Perrin and Powell. The results were publicly posted on a certified list with Powell being third and Perrin being fifth. Then, the Director added seniority points, but made Perrin third and Powell fifth. The City Defendants and Powell contend that the Director erred in adding the seniority points and did so incorrectly. However, before the list expired, the City eliminated four corporal positions and created two new lieutenant and two new sergeant classifications. The Chief sent out a memo stating the sequence of events should have resulted in the promotion of Officers Mueller, Perrin, Powell and Hickman to corporal, and then the immediate demotion back to the rank of police officer, and placement on a Re-Instatement List for the period of one year. The reinstatement list listed Powel higher than Perrin due to seniority points being included. Perrin sued the City Defendants for a list status higher than Powell under declaratory judgment and ultra vires claims.  The City Defendants counterclaimed, seeking declaratory relief that Powell was entitled to the promotion and Powell intervened. The trial court issued an order denying Perrin’s plea to the jurisdiction and motion for summary judgment and granting the City Defendants’ and Powell’s motions for summary judgment. Perrin appealed.

The court first held the legislature waived immunity for dissatisfaction with the grading in §143.034(a) of the Texas Local Government Code, which permits an “eligible promotional candidate” who is “dissatisfied” with “the examination grading” to “appeal, within five business days, to the commission for review.” To the extent that Powell is relying on the UDJA to challenge “the examination grading” such is precluded due to the redundant remedy doctrine. Powell’s ultra vires claim is not dependent on the remedies so is permitted to move forward for prospective relief only, but since Powell sought a reevaluation of the promotion list, that is not prospective. The trial court erred in granting Powell’s summary judgment for retrospective relief to alter the list. conclude that the City Defendants’ counterclaim requesting declaratory relief did not rise to a justiciable level and therefore the district court lacked subject matter jurisdiction over the counterclaim. It is the promotional eligibility list that provided the rights and status of the parties as to their initial promotion to corporal. Whether Perrin was erroneously placed ahead of Powell on the promotional eligibility list does not affect the rights and status of the parties under that list because, on this record, there is no mechanism by which the expired list may be retroactively amended.  By providing a unilateral right of review only to officers, the Civil Service Act is not thereby permitting a declaratory judgment action through which the City Defendants may challenge the decision of the Director in making the list.  However, for the reinstatement list, the context of the statute makes clear that the reinstatement list is created by the demotion of officers who have “least seniority in a position” and that the list “shall” be “in order of seniority.” The court determined that “seniority” in section 143.085(a) refers to seniority in the corporal position, not seniority in the Department.  So, when multiple individuals are promoted to open vacancies from a promotional eligibility list at the same time and then demoted at the same time, “seniority” for the reinstatement list is determined by the order of the promotional eligibility list.

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

The Third Court of Appeals held that no implied authority exists for actions of a state agency without a showing that the implied authority is required to effectively perform a statutorily expressed responsibility.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

University of Texas at Austin President Jay Hartzell, et al. v. S.O., et al., No. 03-19-00131-CV (Tex. App.—Austin September 4, 2020).

In this ultra virus University case, the plaintiff sued University officials for exceeding their authority in attempting to revoke her Ph.D after she had already graduated from the University.    The Court of Appeals held that the University did exceed its authority in attempting to revoke her earned degree because they do not have specific statutory authority to revoke degrees and the authority to revoke degrees is not essential to its statutory authority to award degrees.

The plaintiff was awarded a Ph.D in 2008.  In 2012, the University conducted an investigation and attempted to revoke her Ph.D for academic misconduct in 2014.  The plaintiff sued the University stating that her due process rights were violated by the University’s procedure.  The University undid its revocation and instituted a different procedure to investigate the possibility of revoking the plaintiff’s degree again.  In response to the University’s renewed efforts, the plaintiff sued the University in this suit as an ultra vires claim.  The University defendants filed a plea to the jurisdiction arguing they had the authority to revoke the degree because its rules allowed it and because the authority to revoke degrees is implied with the authority to award degrees.  This case has been through the appellate process once on the issue of ripeness.  The appellate court held that her complaint was ripe and the case was sent back to the trial court.  Upon return, the trial court granted-in-part and denied-in-part the plea.  In this appeal, the issue is whether the University has the authority to revoke degrees, the basis of the plaintiff’s ultra vires claim.

An ultra vires claim waives immunity if the plaintiff can show that an official’s conduct exceeded their granted authority.  Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).  State agencies, like the University, only have the authority that they are given by statute and may only adopt rules pursuant to their statutory authority.  Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008).  State law gives a University the authority to “award” a degree, but not to revoke one.  Tex. Educ. Code § 65.31(b).  Authority can be implied if the agency needs the power in order to allow the agency to effectively carry out the functions necessary for its expressed authority.  Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192-93 (Tex. 2007).   The Court of Appeals held that the authority to award degrees does not require the authority to revoked degrees, and therefore revoking a degree after a student has earned it and graduated is an ultra vires act waiving sovereign immunity.

The Court also affirmed the trial court’s denial of attorney’s fees from the plaintiff.  Even though the plaintiff prevailed, the legal questions were ones that needed to be decided and an appellate court gives a trial court wide discretion in determining attorney’s fees so long there is no abuse of discretion.

Justice Kelly issued a concurring and dissenting opinion stating that the University does have the authority to revoke a student’s degree, but that the claims are not ripe.

If you would like to read this opinion click here.   Panel consists of Justices Goodwin, Baker, and Kelly. Opinion by Justice Thomas Baker.  Concurring/dissenting opinion by Justice Kelly can be found here.

Homeowners Association Had Standing to Sue Planning and Zoning Commission for Mandamus Relief

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 Escalera Ranch Owners’ Ass’n, Inc. v. Schroeder, 07-19-00210-CV, 2020 WL 4772973 (Tex. App.—Amarillo Aug. 17, 2020, no pet. h.)

This is an interlocutory appeal from the trial court’s order granting the plea to the jurisdiction.

In April of 2018, the City of Georgetown’s Planning and Zoning Commission (“Commission”) approved a plat for a new 89-home subdivision to be located adjacent to and north of an existing residential subdivision known as Escalera Ranch. The sole means of access to the new subdivision was through a residential street that provides access to and through the Escalera Ranch. The homeowner’s association of Escalera Ranch (“Association”) sued the Commission under mandamus seeking to invalidate the plat. The Association also requested a temporary injunction to halt the development of the subdivision. The Commission filed a plea to the jurisdiction which was granted and the Association appealed.

To enjoin the actions of a governmental body, an individual must plead and prove a “special injury,” by alleging how the person has been damaged beyond the same damage to a member of the general public. The Association alleged new residential subdivision would create a material increase in traffic as one street would serve as the sole inlet for both subdivisions. The association also alleged the added congestion creates a potential safety risk to the safety and welfare of neighborhood residents because the street served as the only emergency vehicle access to the neighborhood. Based upon those allegations, the court found Association’s members have an interest peculiar and distinguishable from the general public. Further, the Association alleged the Commission abused its discretion by approving a plat that did not comply with the City’s fire code. The court found the act of approving the plat was ministerial only if the plat conformed to applicable regulations, and if it does not conform, the act is not ministerial. If the Commission approved a plat that failed to comply with applicable regulations, it could constitute an abuse of discretion, subject to mandamus relief.

If you would like to read this opinion click here. The panel consists of Justices Pirtle, Paker and Doss.  Opinion by Justice Parker.

San Antonio Court of Appeals holds governmental immunity bars both suit and liability where the ‘only plausible remedy’ is invalidation of a government contract.

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City of San Antonio v. Patrick Von Dohlen, et al., 04-20-00071-CV (Tex. App.—San Antonio Aug. 19, 2020)

 This is an interlocutory appeal from the denial of a plea to the jurisdiction and Rule 91a motion to dismiss filed by the City of San Antonio.

Plaintiffs Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri sued the City of San Antonio (“City”) seeking declaratory and injunctive relief.  Plaintiffs alleged that the City violated Government Code Chapter 2400 by continuing to exclude Chick-fil-A from operating a restaurant in the City’s airport based on Chick-fil-A’s financial support for “certain religious organizations that oppose homosexual behavior.”  Section 2400.002 of the Texas Government Code specifically prohibits governmental entities from taking any adverse action against any person or business based on “membership in, affiliation with, contribution, donation, or other support provided to a religious organization.”  This legislation took effect on September 1, 2019, more than five months after the San Antonio City Council voted to implement an amended concession agreement that required Chick-fil-A to be replaced with a different vendor.  The City filed a plea to the jurisdiction, asserting governmental immunity, and a Rule 91a motion to dismiss for lack of standing, both of which the trial court denied.  The City then appealed.

The Fourth Court of Appeals determined that although a plaintiff may properly sue for declaratory and injunctive relief when the governmental entity and its officers acted without legal or statutory authority, such a suit is precluded by governmental immunity if the purpose or result is to cancel or nullify a valid contract with the entity.  In this case, the court examined the nature of the plaintiffs’ claims and held that even though the plaintiffs purportedly sought only prospective relief against the City, the only plausible remedy for their claims was nullification of the amended concession agreement.  The court agreed with the City and found that plaintiffs’ suit sought to “undo and invalidate a contract previously approved by the city council, compel the City to re-open the contract approval process, and require the City to re-award the contract to a subcontractor that will operate a Chick-fil-A restaurant in the airport.”  Furthermore, where the “only plausible remedy” for the plaintiff’s claim is invalidation of a government contract, governmental immunity bars both suit and liability.  As a result, the plea should have been granted.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Dallas Court of Appeals holds comprehensive plan ordinance is subject to referendum petition

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Carruth, et al v Henderson, 05-19-01195-CV (Tex. App. – Dallas, July 22, 2020).

This is a mandamus action (and second interlocutory opinion) where the Dallas Court of Appeals issued a mandamus against the City Secretary of the City of Plano regarding a citizen’s referendum petition and granted summary judgment for the plaintiff citizens.

The City of Plano, a home-rule municipality, has a comprehensive plan for land and use development under Chapter 213 of the Texas Local Government Code. The City of Plano’s charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. After the City passed an ordinance amending and adopting a new comprehensive plan, several citizens submitted a petition to the City Secretary for a referendum to repeal the new plan. The City Council held an executive session and was advised by outside legal counsel that the petition was not subject to a referendum vote. When no action was taken on the petition, the citizens filed suit to compel formal submission to the City Council and to have the City Council either take action or submit to a popular vote. The City Secretary filed a motion for summary judgment, which was granted. The citizens appealed.

The legislature may preempt municipal charters and ordinances. However, when preempting a home-rule charter, the language must be clear and compelling. The Plano City Charter itself excepts only ordinances and resolutions levying taxes from the referendum process. And while Chapter 213 of the Texas Local Government Code regulates the adoption of comprehensive plans, the mere fact that the legislature has enacted a law addressing comprehensive plans does not mean the subject matter is completely preempted (which would have foreclosed a referendum application). The City Secretary claims § 213.003 impliedly withdraws comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission before cities can act on such plans. This argument ignores that the statute also allows a municipality to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. Tex. Loc. Gov’t Code § 213.003(b). Thus, the legislature did not limit the power of home-rule municipalities to adopt comprehensive plans. Further, comprehensive plans, while linked, are to be treated differently than zoning regulations. So, the cases cited by the City Secretary related to zoning referendums are not applicable. The order granting the City Secretary’s motion for summary judgment is reversed.  Because the original interlocutory opinion (summary found here) held the City Secretary has a ministerial duty to present the petition to the City Council, the law-of-the-case doctrine prevents the panel from holding otherwise. As a result, it must grant the citizen’s motion for summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Schenck, Molberg, and Nowell. Opinion by Justice Schenck.  Docket page with attorney information found here.

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

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

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

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

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

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