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.

City immune from alleged failure to honor tax abatement says Dallas Court of Appeals

Lloyd Douglas v. City of Kemp 05-14-00475-CV (Tex. App. – Dallas, June 9, 2015).

The Dallas Court of Appeals affirmed the granting of a plea to the jurisdiction in this suit for the alleged failure to honor a tax abatement.

Douglas alleged he negotiated a tax abatement with the Mayor of Kemp in order to construct a nursing facility.  However, when Douglas received his tax statement it made no mention of the abatement.  He sued in response. The City filed a plea to the jurisdiction which the trial court granted and Douglas appealed.

The court first held offering a tax abatement is still part of the governmental function of tax collection and is not proprietary. As a result, governmental immunity applies to the negligent misrepresentation claims. Additionally, Douglas failed to exhaust his administrative remedies under the Texas Tax Code for declaratory judgment. The crux of his claim is an “invalid tax assessment” which must go through the procedures in the Tax Code. This also resolves his contract claims without the court having to decide on whether the governmental/proprietary dichotomy applies in contracts. Finally, Douglas failed to properly argue/brief his promissory estoppel claim, so the court need not address it. The granting of the plea is affirmed.

If you would like to read this opinion click here. Panel:  Justice Francis, Justice Lang-Miers and Justice Whitehill. Memorandum Opinion by Justice Lang-Miers.  The attorneys listed for the City are Francisco Valenzuela   and Thomas P. Brandt.  The attorneys listed for Douglas are Scott W. Weatherford  and George Breck Harrison

U.S. 5th Circuit holds school district not a proper RICO defendant, but former trustee is; former trustee not entitled to §101.106 immunity for bribery allegations

The Gil Ramirez Group, L.L.C. v. Houston Independent School District  13-20753 (5th Cir. May 18, 2015).

This is a bribery and federal Racketeer Influenced Corrupt Organizations Act (“RICO”), claim case against the Houston Independent School District (“HISD”), a former HISD trustee (“Marshall”) and his consulting company and various private companies. In the end, the Fifth Circuit determined that while HISD is not a proper RICO defendant, the individuals involved could have potential liability and must proceed to trial.

This is a thirty page opinion with various parties, procedures, and complex aspects. The main thing for a local government lawyer to take away from the case is the fact entities like HISD are not proper RICO defendants, but individual members of the governing body may be. The analysis of immunity for “employees” is also important.  HISD has a job-order contract (“JOC”) program. Under this program, HISD periodically solicits requests for proposals (“RFPs”), following which a committee of HISD administrators (the “selection committee”) evaluates vendors’ bids. The Board of Trustees then votes on the selection committee recommendations. Marshall, a trustee at the time, “masterminded questionable business arrangements in which he served as a paid consultant for several organizations that did business with the District. When the District explicitly prohibited that conduct, those companies hired Marshall’s business associate Joyce Moss Clay (together with her company, ‘Clay’), whose company began paying Marshall a share of its consulting fees.” Private vendors paid Clay over $2,000 per month for several years, but could not explain what work Clay actually performed. Ramirez was told his company would have to hire Clay in order to protect its participation in the JOC program. Ramirez refused and his volume of jobs decreased. He sued alleging violations of RICO, First and Fourteenth Amendment rights violations and state law claims for breach of contract, estoppel, and civil conspiracy.  The trial court dismissed the claims and Ramirez appealed.

The Fifth Circuit first analyzed and held Ramirez was a proper RICO Plaintiff. Then the court held the HISD entity is not a proper RICO defendant because 1)  RICO requires demonstrating an underlying criminal act, which entails a mens rea requirement that a governmental entity cannot form and 2)  municipal entities enjoy common law immunity from punitive damages, and, whatever else it is, RICO’s treble damages provision is punitive.  The court dismissed Ramirez’ breach of contract, promissory estoppel and quasi estoppel claims as HISD did not breach any contracts or promises, but simply did not hire them as much. However, with respect to Marshall, individually, the court showed no deference. The court held he was not entitled to either the statutory immunity under Tex. Civ. Prac. And Rem. Code §101.106 or the Education Code’s professional immunity section as he was not acting as an “employee” at the time of the alleged acts. He was a volunteer elected trustee over which HISD had no direct control. He was also not acting within the scope of his duties, if the allegations are to be believed. “He was allegedly defiling his position and wholly outside the legitimate scope of a trustee’s duties if he accepted bribes in exchange for advancing the interests of certain contractors.”  The court does give an interesting analysis of the constitutional claims, which it dismissed against both HISD and Marshall.  Essentially, Ramirez did not speak out on a matter and had no vested right to a contract.  He merely refused to participate in bribery. The Equal Protection Clause forbids state actors from treating similarly situated individuals differently for a discriminatory purpose and without a rational basis. “‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences.’” Noting  “[t]hat Marshall may have perverted HISD’s procurement processes to cause HISD to discriminate in favor of RHJ and FBM is not sufficient to show that [Ramirez] was discriminated against.” Ramirez did not assert he was a member of a particular class and the “class-of-one” analysis does not apply to actions which, by their nature, involve discretionary decision-making based on individualized assessments.  So, in the end, HISD is dismissed completely, the constitutional claims against Marshall are dismissed, but all other claims remain.

If you would like to read this opinion click here. Panel: REAVLEY, JONES, and ELROD.  Opinion by Justice Jones.

U.S. Supreme Court holds Telecommunications Act does not require reasons for denial of permit in any particular form, but does require they be issued at same time as notice letter

T-Mobile South, LLC v. City of Roswell, 13-975 (January 14, 2015).

This is a Telecommunication Act case where the City of Roswell, Georgia denied an application to build a cell tower on residential property but failed to specify the grounds in its denial. The Act requires localities to provide reasons when they deny applications to build cell phone towers and their reasons for a denial must be supported by substantial evidence in the record. Since the City did not specify the grounds in the notice of denial, T-Mobile sued under the Act.

The City Council held a 2-hour-long public hearing on April 12, 2010, to consider T-Mobile’s application. It arranged privately to have the hearing transcribed, and the City subsequently issued detailed minutes summarizing the proceedings. At the hearing there were concerns that the tower would lack aesthetic compatibility, that the technology was outdated and unnecessary, and that the tower would be too tall. T-Mobile responded by reiterating that it had met all of the ordinance’s requirements and by providing testimony from a property appraiser that placement of cell phone towers does not reduce property values. Individual councilmembers made various comments and asked questions regarding the application during the meeting. The motion to deny the petition noted it would be aesthetically incompatible with the natural setting, that it would be too tall, and that its proximity to other homes would adversely affect the neighbors and the resale value of their properties. The motion passed unanimously.  Two days later, the City sent a formal notice of denial.  It did not specify the particular grounds but did note the minutes of the meeting could be obtained from the City clerk, even though they were not approved for 26 days. T-Mobile sued and the trial court granted its motion for summary judgment.  The Eleventh Court of Appeals reversed holding the detailed minutes were sufficient to specify the grounds for denial and provided substantial evidence for support and T-Mobile appealed.

The U.S. Supreme Court first held that cities must provide reasons for any denial under the Act. Otherwise it is impossible to determine if the denial is supported by substantial evidence, which is a legal term of art.  However, the reasons for the denial need not appear in the notice letter. The Act does not specify any particular form for providing notice. The reasons must be provided within a reasonable time, however, since any person aggrieved must seek judicial review within 30 days of the decision. The 26 day delay in issuing the minutes which contain the reasons deprived was insufficient. The reasons for the denial must be conveyed at essentially the same time as the notice of denial.  The Justice Robert’s dissent asserts four days was sufficient to allow for the appeal so would have ruled the City complied with the Act. Justice Thomas’s dissent expresses an opinion the majority was too eager to reach beyond the statutory language and placed additional administrative burdens on the City.

If you would like to read this opinion click here. JUSTICE SOTOMAYOR delivered the opinion of the Court with JUSTICES SCALIA, KENNEDY, BREYER, ALITO, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. ROBERTS, C. J., filed a dissenting opinion in which GINSBURG, J., joined, and in which THOMAS, J., joined as to Part I. THOMAS, J., filed a dissenting opinion. The docket sheet with attorney information can be found here.

City immune from breach of community development agreement

Rebecca Schoffstall v. City of Corpus Christi, 13-13-00531-CV (Tex. App. – Corpus Christi, August 25, 2014).

This is a contractual immunity case involving a community development program. The 13th Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Schoffstall is the daughter and executrix of Hortensia Hernandez, the party involved in the underlying suit. Hernandez received an interest free loan from the City to finance the demolition and construction of a new home as part of the City’s community development program. Bodine was a builder Hernandez hired for the work, but Hernandez and Bodine had a disagreement resulting in a suit. The City withdrew its loan resulting in Hernandez and Bodine suing the City. The City filed a plea to the jurisdiction asserting governmental immunity, which the trial court granted and Hernandez’ estate appealed.

The court first noted community development is a governmental function.  A community development agreement for a no interest loan is not a contract for providing goods or services “to” the City, so Chapter 271 of the Local Government Code does not waive immunity. References in the deed of trust accompanying the agreement which references the FTC Rule (placing the holder in the shoes of the seller) is likewise not a waiver, since only the legislature can waive immunity. And since the City has not obtained any benefits from the zero-interest loan, equitable estoppel and waiver-by-conduct do not apply, even if all other conditions of these exceptions existed. Finally, given the facts, there is no way to replead to establish a waiver, so no opportunity to replead is required. The trial court’s dismissal of Hernandez’ claims was affirmed.

If you would like to read this opinion click here. Panel: Justice Rodriguez, Justice Garza and Justice Benavides. Memorandum Opinion by Justice Garza. The attorneys listed for the City are Neely Balko,  John B. Martinez and Marion M. Reilly.  The attorney listed for Schoffstall is Thomas M. Schumacher