El Paso Court of Appeals holds since city appealed denial of a plea to the jurisdiction, but not the final judgment entered at the same time, court could not hear the appeal


The City of Brady and Brady Police Department v. William Dale Scott, 08-20-00155-CV (Tex. App. – El Paso, Aug. 16, 2021).

The El Paso Court of Appeals determined it did not have jurisdiction to hear an interlocutory appeal from a Chapter 47 suit to determine ownership of property.

This case started when City police seized $11,450.00 from Scott when searching his home. Scott was investigated for a type of fraud after complaints came that he was operating some form of scam.  Several years later, Scott filed suit specifically under the Texas Code of Criminal Procedure Art 47.01 et seq, which allows for a specific hearing to determine person with the superior right to possession of property. His Chapter 47 petition complained that although the police opened a case file in the matter and provided him with a receipt stating that it had taken $11,452 in cash from him, the police never returned the cash to him. Criminal charges were never filed. The City filed a plea to the jurisdiction. The trial court denied the plea in the same order it issued a final judgment granting Scott’s relief. The City filed an interlocutory appeal.

The City asserts the funds were not seized as part of a criminal investigation, but to determine their ownership. The City asserted it no longer has the funds as they were disposed of under article 18.17 of the Code of Criminal Procedure allowing for disposing of funds when the owner is unknown. Under that article, the police placed an advertisement in the local Brady newspaper stating that it had cash in excess of $500 in its possession, and that anyone claiming the money had 90 days to contact them. After no one responded the department obtained an order awarding the funds to the City of Brady from a Brady Municipal Court judge. The City alleged that Scott only had 30 days to appeal or otherwise contest the municipal court’s disposition order, and that doing so was a “statutory prerequisite” to filing a Chapter 47 petition.  The City also asserted that the notice setting hearing only set the plea, and not a final determination on the Chapter 47 suit. The trial court ruled on both matters in the same order. The City filed an interlocutory appeal, appealing only the denial of the plea. The El Paso court held when a trial court has already entered a final judgment, an appellate court has no jurisdiction to hear a governmental body’s interlocutory appeal from an order denying its plea to the jurisdiction, and the governmental body must instead pursue an appeal from the final judgment.  Since the City’s appeal did not timely appeal the final judgment or file an appeal bond for a Chapter 47 appeal, the court has no jurisdiction to hear the City’s arguments. The case is therefore dismissed.

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

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


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.

Texas Supreme Court holds ratepayer has standing to sue to challenge electric rate increase


Data Foundry, Inc. v City of Austin, 19-0475 (Tex. April 9, 2021)

This is a utility rate challenge case. However, the issue considered by the Texas Supreme Court is whether the company purchasing electricity has standing to sue. The Court held it does have standing.

Data Foundry is an internet service provider that operates data centers in Austin. The City owns and operates Austin Energy, an electric utility system. In 2016, Austin Energy proposed to change the retail rates it was charging for electric services. The City hired a hearing examiner to conduct a review of the proposed new rates. Several ratepayers, including Data Foundry, intervened and participated in the hearing process. Ratepayers were permitted to conduct discovery, provide testimony, and cross-examine witnesses at a public hearing. Data Foundry submitted briefs in which it argued, as it does in this case, that Austin Energy’s proposed rate structure would result in rates that were unreasonable, unlawful, and confiscatory.  The Austin City Council passed an ordinance establishing new base rates and pass-through rates. Data Foundry sued in district court to hold the ordinance invalid. The City filed a motion to dismiss all of Data Foundry’s claims under Rule 91a. The trial court granted the motion, but the Court of Appeals reversed in part and affirmed in part.

The threshold inquiry into standing “in no way depends on the merits of the [plaintiff’s] contention that particular conduct is illegal.” To maintain standing, a plaintiff must show: (1) an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the defendant’s challenged action; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.  In the context of lawsuits filed by ratepayers to challenge utility rates charged by a municipality, the Court has not required an individual plaintiff to allege its injury is distinct from injuries other ratepayers may suffer. An injury is “particularized” for standing purposes if it “affect[s] the plaintiff in a personal and individual way.” Data Foundry thus alleges an injury that is particularized to it—Data Foundry suffers financial harm because it must pay Austin Energy a particular sum of money that exceeds what Data Foundry contends it should have to pay and that the rate is discriminatory. The fact that the City’s actions may also injure other residents does not preclude a finding that Data Foundry has alleged a sufficiently particularized injury. Being forced to part with one’s money to pay an excessive electric rate is an injury that is personal and individual, even though others may suffer the same injury. The Court held several cases holding that a utility ratepayer cannot establish standing to sue unless it alleges an injury different from that of other ratepayers, beyond its personal obligation to pay a rate that it claims is improper, are disapproved of as inconsistent with Texas standing jurisprudence. The Court remanded to determine the remaining issues under PURA as such determinations are not based on standing, which was the only ground upon which the trial court ruled.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court.

San Antonio Court of Appeals holds city ethics commission properly ruled complainant’s filing was frivolous and could award sanctions


Lakshmana Viswanath v. The City of Laredo, 04-20-00152-CV (Tex. App. – San Antonio, April 14, 2021)
This is an appeal from a city ethics commission determination where the San Antonio Court of Appeals affirmed the commission’s finding but reversed the award of attorney’s fees.
Viswanath is the founder of a government watchdog group known as Our Laredo, who ran for city council and was defeated by Councilman Martinez in 2018. In 2019, a member of Our Laredo, Victor Gomez, filed an ethics complaint with the City’s Ethics Commission against the Co-City Managers arguing they were required to “ensure” that Councilman Martinez forfeit his seat due to an alleged conflict of interest. They did not file a complaint against Martinez, but against the Co-Managers. Viswanath filed an additional ethics complaint against the Co-City Managers arguing they unfairly advanced the private interest of certain developers at the expense of the general population by recommending that City Council pass two ordinances. The Commission dismissed both complaints, concluding they did not allege violations of the Laredo Ethics Code and therefore did not invoke the Commission’s jurisdiction. After finding both complaints frivolous, the Commission publicly admonished Gomez and ordered Viswanath to pay the maximum civil fine—$500.00—plus $7,900.68 in attorney’s fees to the Commission’s conflicts counsel. Viswanath filed a verified petition in district court appealing the Commission’s decision and seeking a declaratory judgment. The City filed a motion for summary judgment, which the trial court granted. Viswanath appealed.
The court of appeals first held that the City’s ethics code allows an appeal to district court and requires a suit against the City. It, therefore, waived the City’s immunity from suit, but only for the limited purposes spelled out in the Ethics Code and that the proper mechanism for that is the UDJA. Under this mechanism, the trial court must review the Commission’s decision under the substantial evidence rule. At the initial hearing, Viswanath testified he was involved in filing both the complaint about Councilman Martinez and the complaint about the ordinances. Viswanath testified that the objection he raised was that the Co-City Managers “made the wrong recommendation”—a recommendation which was ultimately accepted by City Council. He was informed by several city officials that city management could not conduct the investigation he requested or provided the remedy he sought. Based on this evidence, the Commission could have reasonably determined that Viswanath was aware the Co-City Managers lacked authority to perform the investigation or grant the relief he requested, yet still filed his complaint in a groundless and harassing action. Substantial evidence supported the Commission’s decision, so the trial court was required to affirm it as a matter of law. The court also determined that the Commission was authorized to require a complainant who files a frivolous complaint to pay a civil penalty, the respondent’s fees, and any other sanction authorized by law. As a result, the Commission has the authority to aware the Commission’s attorney’s fees be paid as an “other sanction” allowed by law. However, the record does not show what evidence was presented to substantiate the fee amount. As a result, that portion is reversed and remanded for the trial court to determine a proper award amount.
If you would like to read this opinion click here. The panel consists of Chief Justice Martinez, Justice Chapa and Justice Watkins. Memorandum Opinion by Justice Watkins.

Texas Supreme Court holds a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name.

St. John Missionary Baptist  Church, et al, v Merle Flakes, et al, 18-0228, (Tex. Feb. 7, 2020).

The Texas Supreme Court held in this case, which will be of interest to litigators and appellate practitioners, that the courts of appeals have authority to order additional briefing on issues that were not raised in the principal briefs.

This is a dispute over church assets. St. John Missionary Baptist Church held a conference and terminated pastor Bertrain Bailey’s contract. Both Bailey and the chairman of St. John’s trustee board, Merle Flakes, were notified of the vote, but Bailey refused to step down and Flakes continued to pay him. The Church began selling off assets to keep payments. St. John members sued Flake and Bailey. Flakes filed a plea to the jurisdiction based on lack of standing and the ecclesiastical-abstention doctrine. The trial court granted Flakes’s motion but did not specify whether its decision rested on the standing issue, the ecclesiastical abstention issue, or both. St. John appealed, but its appellate brief only expressly addressed the standing issue. The court of appeals, sitting en banc, affirmed in a divided decision holding the court of appeals was bound to affirm the trial court’s judgment because St. John failed to challenge all possible bases for the decision.

St. John contends that Texas Rule of Appellate Procedure 38.9 authorizes courts of appeals to order additional briefing when an appellant fails to brief all possible grounds for the trial court’s decision. Flakes responds that although Rule 38.9 gives courts of appeals discretion to order additional briefing, the court properly exercised that discretion here by declining to order supplemental briefing. The Texas Supreme Court held, generally, Rule 38.1 provides that an issue statement “will be treated as covering every subsidiary question that is fairly included.” However, a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name. Here, the ecclesiastical-abstention doctrine was not an independent basis for affirming the trial court’s judgment apart from the standing issue. Rather, based on the record before us, it appears that the standing and ecclesiastical-abstention issues are “so inextricably entwined that one cannot be mentioned without automatically directing attention to the other.” At the trial court level, Flake’s motion listed both. During a hearing on Flakes’s motion, the overlap between the standing and ecclesiastical abstention issues became even more apparent. On this record, then, the standing issue “fairly included” the ecclesiastical-abstention issue, and St. John’s purported omission did not require the court of appeals to affirm based on a lack of inclusive identification. St. John’s briefing was “sufficient to put the court of appeals on notice” of the ecclesiastical-abstention issues in the case and “invite[d] the court of appeals to correct any error of law” as to that issue. The opinion is reversed and remanded.

If you would like to read this opinion click here. Per Curiam opinion. Docket page found here.

El Paso Court of Appeals reversed mandamus against JP holding rules applicable to justice/municipal courts allow “electronic” judgments


In re Lujan, 08-15-00286-CV, 2019 WL 1922765, (Tex. App. – El Paso, April 30, 2019).

This is a mandamus case involving and order the Justice of the Peace for Precinct 6 in El Paso to vacate an order falling outside of his plenary power.  This case involves principles of JP and non-record courts and will be of interest to those attorneys who practice in such courts.

The underlying action was a citation for “Possession of Drug Paraphernalia,” a Class C misdemeanor punishable only by a fine.  Villanueva entered a plea of no contest and payment. The court submitted the information into its case management system; but it is important to note  no written judgment was created or signed by Judge Lujan. Four years later, Villanueva requested a withdrawal of his previous plea and a trial. When Judge Lujan refused, Villanueva filed for a writ of mandamus to a county court in El Paso.  The record included a paper copy of the court’s case management system docket entries, Villanueva’s identifying information, his entered plea, the screen shot of the system’s judgment (adjudged “guilty”), the paid fine amount, and receipt of said payment after acknowledgement by Villanueva that it was a “record.” Ultimately, the county court granted  mandamus petition against Judge Lujan, stating that Lujan never entered a written judgment as required by the applicable procedural rules and failed to set the case for trial. At this point, Lujan filed a motion for a new trial and a notice of intent to appeal.

The pivotal focus in this case is the relationship between justice/municipal courts and the Code of Criminal Procedure and Civil Procedure. Justice and municipal courts are controlled by Chapter 45 of the Code of Criminal Procedure. The El Paso Court of Appeals held that justice and municipal courts are not governed by provisions outside of Chapter 45 if they are expressly included within Chapter 45 provisions. Further, during the Court of Appeals’ analysis refused to hold justice and municipal courts to standards applicable to “indictments and informations,” since justice (and municipal) courts rely on complaints as their charging instruments.  The interconnectivity is often misunderstood. The El Paso Court of Appeals noted 1) along with Chapter 45, chapters the Texas Government Code also apply including Chapter 27 to justice courts, Chapter 29 to municipal courts not of record, and municipal Chapter 30 to municipal courts of record and 2) in the absence of a specific provision, the remainder of the Code of Criminal Procedure most likely applies to justice and municipal courts. The appellate court found provisions within Chapter 45 considered electronically stored records to have the same effect as documents otherwise required to be written. Specifically, the Chapter provided that electronically recorded judgments have the “same force and effect as a written signed judgment.” As a result, the order of mandamus was reversed.

If you would like to read the opinion in its entirety, please click here.  Panel consists of Chief Justice McClure, Justice Rodriguez and Justice Hughes.  Opinion by Justice Rodriguez.

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


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.

Did You Know: Common Citations For Weeds, Trash, Sanitation


The governing body can regulate sewers and privies (Tex. Health & Safety Code Ann. § 342.002); trash, rubbish, filth, carrion, or other impure or unwholesome matter (Tex. Health & Safety Code Ann. § 342.003); weeds, brush, and nuisance level vegetation  (Tex. Health & Safety Code Ann. § 342.004).  It can adopt criminal ((Tex. Health & Safety Code Ann. § 342.005) penalties and can bring a civil suit (potentially in municipal court) to enforce such ordinances. Tex. Loc. Gov’t Code §§54.012 & 017.

Claims against City for Sex-Offender Residency Registration Ordinance is moot after passage of Tex. Loc. Gov’t Code §341.906


Texas Voices for Reason and Justice, Inc. v. The City of Meadows Place, 14-17-00473-CV (Tex. App. – Houston [14th Dist.] July 19, 2018).

This is a challenge to a sex-offender residency restriction ordinance (SORRO) which the 14th Court of Appeals held is now moot given legislation effective September 1, 2017.

Meadows Place’s SORRO prohibits certain sex offenders from permanently or temporarily residing within 2,000 feet of any premises where children commonly gather. Texas Voices sued Meadows Place asking the trial court to declare the SORRO unconstitutional because Meadows Place, as a general-law city, had no authority to enact it. The City filed a plea to the jurisdiction, which the trial court granted.  Texas Voices appealed.

After the dismissal, in the last legislative session, H.B. 1111 created Texas Local Government Code § 341.906 which allows general-law cities to enact such ordinances. In response, Meadows Place passed two ordinances to bring its SORRO into compliance with §341.906. A case is moot when the court’s action on the merits cannot affect the parties’ rights or interests. This includes while the case is on appeal. After Meadows Place came into compliance with §341.906 it possessed the ability to pass and enforce a SORRO.  Texas Voices claims focus only on the validity of the ordinance. Therefore, the case has become moot.

If you would like to read this opinion click here. Justice Boyce, Justice Jamison and Justice Donovan.  Memorandum Opinion Per Curiam.  The attorneys listed for the City are Judith Lamoreux El Masri and J. Grady Randle. J the attorney listed for Texas Voices is Richard Scott Gladden.

Texas Supreme Court holds the accommodation doctrine applies to groundwater leases


Coyote Lake Ranch, LLC v City of Lubbock, 14-0572 (Tex. May 27, 2016)

This is a dispute over a groundwater lease owned by the City and whether the accommodation doctrine (which is founded in oil and gas law) applies. The Texas Supreme Court held that it does.

Coyote Lake Ranch is used primarily for agriculture, raising cattle, and recreational hunting. In 1953, the Ranch sold a groundwater lease to the City of Lubbock to help it combat a massive drought. In 2012, the City announced plans to increase water-extraction efforts on the Ranch, possibly drilling as many as 20 test wells. The Ranch objected noting that mowing or removing vegetation from the surface causes destructive wind erosion, exacerbated by cattle tromping over mowed paths. According to the Ranch, wind, drought, and grazing cattle prevent grass from growing back, particularly in the areas the City mowed. The trial court enjoined the City from further efforts to drill wells. The Court of Appeals reversed holding the accommodation doctrine did not apply.

An oil-and-gas lessee has an implied right to use the land but must exercise that right with due regard for the landowner’s rights. This is the accommodation doctrine. It has never before been extended to a groundwater lease. The Court analyzed the lease language and noted that the different interpretations presented by the parties provide extremes on both sides. The Ranches interpretation could severely restrict the City’s drilling activities if the City could only drill where the Ranch deemed appropriate. The City’s interpretation would mean it has an all but an absolute right to use the surface heedless of avoidable injury, although it must answer for damages caused to the surface. Going back to the concept of mineral separation interests the Court held the mineral and surface estates must exercise their respective rights with due regard for the other’s rights. After going through the history of the accommodation doctrine, the Court held the doctrine should be applied to groundwater leases. The Court then noted the injunction was too prohibitive, however, and remanded the case for further processing in the trial court.

Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Johnson, Justice Guzman, Justice Devine and Justice Brown joined. Justice Boyd delivered a concurring opinion, in which Justice Willett and Justice Lehrmann joined.


NCAA former Coach negated her own retaliation claim when she properly plead discrimination claim

The University of Texas at Austin v. Beverly Kearney, 03-14-00500-CV (Tex. App. – Austin, May 3, 2016)

This is an employment case where the Austin Court of Appeals reversed in part and affirmed in part the denial of the University’s plea to the jurisdiction in this retaliation and disparate treatment case.

Kearney, who is an African-American female, was the head coach of the University’s women’s track and field team for approximately 21 years.  In October 2012, Kearney was told by the women’s athletic director that a report had been made to the University that Kearney had engaged in a personal relationship with a former student-athlete in approximately 2002. Kearney admitted to the relationship and was subsequently placed on administrative leave pending an investigation. On December 6, 2012, Kearney met with University attorneys and raised complaints alleging past incidents of race and sex discrimination for which she had not filed charges of discrimination. On January 5, 2013, Kearney resigned in lieu of termination. On March 8, 2013, Kearney filed a charge of discrimination.  She received her right to sue letter and filed suit for discrimination and retaliation. The University filed a plea to the jurisdiction which was denied.

The court first noted that Kearney’s allegations dating back to September 2012 (beyond the 180-day complaint period) are not causes of action in themselves, but are factual allegations as a background to support her claim of current discrimination relating to her termination.  She did timely file a TWC complaint within 180 days of her termination. As a result, the September statements are not causes of action, but are proper evidence to consider regarding her termination. With regards to her retaliation claim, to establish causation, the employee must establish “a ‘but for’ causal nexus between the protected activity and the prohibited conduct.”  No liability for unlawful retaliation arises if the employee would have been terminated even in the absence of the protected conduct. The court agreed with the University that Kearney’s pleadings negate causation. Having affirmatively asserted that the University fired her for having a relationship with a student-athlete, she cannot show a but-for causal connection between her complaints of prior discrimination and her alleged constructive discharge. While her allegation of discrimination for singling her out for having the relationship is based on her race and gender, the retaliation allegation cannot coexist under the alleged facts. Finally, since the University’s plea focuses on the facts in the pleadings, the pleadings indicate Kearney alleges she was treated less favorably than other coaches of different genders and races who had similar violations. The University offered no evidence to support its assertion the other coaches were not similarly situated so the court must take the pleadings as true on their face. As a result, Kearney properly pled the elements of her cause of action. So the retaliation claims should have been dismissed, but the trial court properly denied the plea as to the discrimination claims.

If you would like to read this opinion click here. Chief Justice Rose, Justice Goodwin and Justice Bourland. Memorandum Opinion by Justice Goodwin.  The docket page with attorney listings is found here.

Employee failed to establish at trial decision makers had any knowledge of prior lawsuit, so no retaliation claim can be sustained says 13th Court of Appeals

Trinidad Rivera v. Port Arthur Independent School District, et al., 13-14-00214-CV (Tex. App. – Corpus Christi, April 21, 2016).

This is an employment retaliation case where the 13th Court of Appeals affirmed the granting of a judgment notwithstanding the verdict on behalf of the Port Arthur Independent School District (“PAISD”)  and the dismissal of the individual school employees.

Rivera was a teacher at PAISD’s Memorial High School.  Rivera previously sued the school for discrimination and had a settlement.  Three years later, Rivera sued for retaliation in bringing the first lawsuit in relation to how the PAISD handled a student complaint against him (which resulted in a suspension for his alleged choking of a student). Rivera also asserted a common-law defamation claim against individual employees of the PAISD. The trial court dismissed the employees under the Texas Tort Claims Act’s election of remedies in §101.106. After a jury returned a verdict in Rivera’s favor, the trial court granted a judgment notwithstanding the verdict in favor of the PAISD. Rivera appealed the judgment. The individual employees cross-appealed for attorney’s fees under Tex. Education Code §22.0511.

Rivera asserted another teacher/coach (Cooper) encouraged the student to report the choking incident because he wanted Rivera’s position. However, the trial court granted the JNOV on the basis that Rivera presented no evidence “to establish a causal link between [Rivera’s] prior protected activity and any alleged adverse employment action on the part of . . . PAISD.”  Essentially, none of the individuals involved, including the principle, were linked to knowing Rivera had previously filed a lawsuit against PAISD. With respect to this element, the employee must establish that absent his protected activity, the adverse employment action would not have occurred when it did. Rivera’s evidence was largely based on his theory that Cooper encouraged the student complaint because he aspired to become the head football coach. However, Cooper did not have the authority to suspend or terminate Rivera.  And his aspirations are not because of Rivera’s protected lawsuit activity. Further, there was no evidence establishing the decision makers regarding the suspension knew of the prior lawsuit. Further, there was no evidence that the allegations of the student were false, but ample evidence they were true. Additionally, “the three-year span between Rivera’s earlier discrimination lawsuit and his suspension … does not serve as any evidence of a causal connection.”  And while the court agreed the TTCA election-of-remedies provision cannot serve as a basis to dismiss a claim brought under the TCHRA, Rivera did not bring TCHRA claims against the individuals.  He only brought defamation claims.  As to the cross-appeal, §22.0511 of the Education Code is an affirmative defense which provides professional school employees immunity from liability in relation to actions taken within the scope of their employment. As an affirmative defense, it goes only to immunity from liability, not suit. The trial court, therefore did not error in granting dismissal for grounds other than those articulated in §22.0511. There was no abuse of discretion in refusing to award attorney’s fees to the individuals dismissed.

If you would like to read this opinion click here. Panel: Justice Garza, Justice Perkes and Justice Longoria.  Memorandum Opinion by Justice Perkes. The attorneys listed for PAISD are  Melody Chappell and Nancy Y. Hart.  The attorneys listed for Rivera are Melissa Azadeh and Larry Watts.

Amarillo Court of Appeals overrules AG opinion and holds civil service video examinations are excepted from public disclosure under collective bargaining agreement

Captain Edwin Scott Hilburn v. The City of Houston, Texas; and Ken Paxton, Attorney General of Texas 07-15-00158-CV (Tex. App. – Amarillo, January 21, 2016).

This is a Public Information Act (“PIA”) case involving promotional examination documentation.

The City conducted the Houston Fire Department Senior Captain examination. Included within this examination, for the first time, were two new exercises: the Subordinate/Organizational Problem Exercise (SP) and the Oral Tactical Exercise (OT).  The SP and OT exercises were video recorded and reviewed by anonymous assessors.  The City received a PIA request for various information, including the SP and OT videos. After going through the administrative process, the AG determined some of the testing information was subject to release. The City filed suit under PIA to withhold the information. Hilburn intervened.  The City and Hilburn filed opposing summary judgments. The trial court granted the City’s motion and denied Hilburn’s.

The court first determined the  City complied with Tex. Gov’t Code §552.3221 allowing the filing of responsive documents in cameria.  It also noted that such filing is permissive, not mandatory, so failing to follow this provision does not equate to a waiver of arguments. The court then determined the City properly raised §552.101 exception and did not waive any arguments. Tex. Loc. Gov’t Code §174.006 states the City’s collective bargaining agreement supersedes the civil service statute.  The City’s collective bargaining agreement specifically noted that video exams were permitted, therefore Tex. Loc. Gov’t Code §143.032 (which makes it a criminal offense to knowingly or intentionally reveal part of a promotional examination) was properly raised.  The court then held that properly raising the exceptions does not automatically equate to entitlement. The court then held that even though the AG determined the video portions were not a “written” exam entitled to protection, the record clearly indicates video exams were intended to be confidential under the collective bargaining agreement. Further, §552.122 makes test questions developed by a licensing agency excepted. However, the assessor’s names do not fall under any of the designated exceptions to disclosure, so neither do the rating forms. So, in the end, the questions and videos were excepted, the rating forms of anonymous assessors were not.

If you would like to read this opinion click here. Panel: Justice Campbell, Justice Hancock and Justice Pirtle.  Memorandum Opinion by Justice Hancock. The attorney for the City is listed as Robert W. Higgason.  The attorney listed for the AG is Kimberly Fuchs.  The attorney listed for Hilburn is Barbara A. Hilburn



Equipment leased by District does not need to automatically vest at end of term to qualify as tax exempt says Fort Worth Court of Appeals

Jack County Appraisal District v. Jack County Hospital District 02-14-00188-CV (Tex. App. – Fort Worth, January 14, 2016).

This is an interesting case of when a governmental entity can be charged for taxes paid by a third-party vender to another governmental entity.

The Hospital District leased a very expensive scanner from Provident Equipment Leasing (“Provident”).  The lease agreement provided that title to the CT scanner would remain in Provident and that the Hospital District was required to pay all property taxes on the CT.  The lease had a right to purchase by the Hospital District. The Appraisal District listed the value of the scanner and taxes due on the scanner under Tex. Tax. Code §22.01. Provident paid the taxes and billed the Hospital. The Hospital District appealed the decision of the Appraisal District that the property was taxable. On cross-motions for summary judgment, the trial court ruled for the Hospital District and the Appraisal District appealed.

It was undisputed the CT scanner was used for a public purpose. The main issue for statutory construction was whether the Hospital District had any ownership in it, thereby exempting it from taxation under Tex. Tax. Code §11.11. The Appraisal District asserted the lease was merely an option to purchase with no vested interest. The Hospital District raised several explanations, one being a vested remainder under the lease. After a lengthy analysis of §11.11 the court held the ownership status under the lease is not required to automatically vest (as asserted by the Appraisal District).  In this case, the Hospital District, alone, has the right under the lease to elect to purchase and Provident has no say in that election. As a result, for §11.11(h) purposes, the Hospital District was the owner of the scanner which was tax exempt.

The dissent mainly focused on which statutory construction principles the majority used.  Justice Gabriel reasoned that the plain language of the lease was a finance lease, not a lease-purchase agreement.  Nothing in the contract allows any lease payments made by the Hospital District to be credited toward any possible, future purchase. Further no security interest is created.  Since it was not a lease-purchase agreement, the plain language of §11.11 would not apply.

If you would like to read this opinion click here.  If  you would like to read the dissent by Justice Gabriel click here. Panel: Justice Gardner, Justice Walker, and Justice Gabriel. Opinion by Justice Gardner. The attorneys listed for the Hospital District are Robert J. Myers and John Shaw.  The attorney listed for the Appraisal District is James Robert Evans Jr.

Texas Supreme Court holds the recreational use statute does not apply to egress from a baseball game


This is a recreation use statute case where the Texas Supreme Court reversed the granting of a plea to the jurisdiction and remanded back to the trial court.

The Diboll Youth Baseball League holds its games, at no charge to the league or spectators, at the City owned Old Orchard Park.  Carolyn Burns attended her granddaughter’s softball game at the Park. While walking on a paved sidewalk, Burns tripped on a hollow pipe protruding from the center of the walkway and was injured. Burns sued and the City filed a plea to the jurisdiction which was denied but later granted by the Court of Appeals.

The Court of Appeals did not have the Supreme Court’s opinion of University of Texas at Arlington v. Williams 459 S.W.3d 48, 55 (Tex. 2015) when it rendered its decision. In Williams the Texas Supreme Court held neither watching a competitive-sporting event nor related acts of egress are encompassed in the recreational use statute’s definition of “recreation.” As a result, the plea should not have been granted and the case was remanded.

If you would like to read this opinion click here.  Per Curiam opinion.  The attorneys for the City are Mr. Robert T. Cain Jr. and Ms. Erika L. Neill.  The attorney for Lawson is Sammy Johnson II.