Recent State Cases of Interest to Cities
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1 Recent State Cases of Interest to Cities by Laura Mueller Associate TML Annual Conference October 6, 2016
2 Takings Harris Cnty. Flood Control Dist. V. Kerr, No , (Tex. June 17, 2016). The elusive Motion for Rehearing. Flood control efforts + flood damage = liability? Bojorquez Law Firm, PC (2016) 2
3 Takings: Harris County 1 st Opinion: Liability because government tried and failed. Court held that sufficient evidence existed to raise a fact issue: 1. County knew flooding could happen 2. Approved development 3. Did not mitigate development Bojorquez Law Firm, PC (2016) 3
4 Takings: Harris County Bojorquez Law Firm, PC (2016) 4
5 Governmental Immunity: Harris County Rehearing: No person s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. 1. Affirmative conduct (approving development?) 2. Specific act caused identifiable harm 3. Public Use (insufficient regulation) 4. Intentional Bojorquez Law Firm, PC (2016) 5
6 Governmental Immunity: Harris County Rehearing: The theory [allowing liability in this case] lacks any discernible limiting principle and would appear to cover many scenarios where the government has no designs on a particular plaintiff s property, but only knows that somewhere, someday, its routine governmental operations will likely cause damage to some as yet unidentified private property. Bojorquez Law Firm, PC (2016) 6
7 Governmental Immunity Tort Sampson v. University of Tex., No (Tex. June 10, 2016). The real danger facing UT Law School Professors.... Bojorquez Law Firm, PC (2016) 7
8 Governmental Immunity Tort X Bojorquez Law Firm, PC (2016) 8
9 Governmental Immunity Tort Tort Claims Act: Trip and Fall Real Property v. Tangible Personal Property Actual knowledge of unreasonable risk of harm Did UT know about the cord placed by a third party? Bojorquez Law Firm, PC (2016) 9
10 Governmental Immunity Tort Tort Claims Act: Trip and Fall Takeaways: Cannot prevail on both real property and personal property tort claims for same incident Slip and fall cases are generally premises defect/real property Real property cases: have to show actual knowledge If you didn t see it, you can t be responsible for it. proximity of the employees is no evidence of actual knowledge Dissent: Justice Lehrmann (UTLAW 82): there was enough evidence of actual knowledge to get this case past plea to the jurisdiction Bojorquez Law Firm, PC (2016) 10
11 Governmental Immunity-Tort City of Dallas v. Sanchez, No (Tex. July 1, 2016) (per curiam). Crazy facts 911 call no responder arrived at correct apartment injured individual died of drug overdose Clam that 911 system malfunction caused death Bojorquez Law Firm, PC (2016) 11
12 Governmental Immunity-Tort City of Dallas v. Sanchez, No (Tex. July 1, 2016). Causal Nexus: Sanchez s death was caused by drugs, the passage of time, and misinterpretation of information. Bojorquez Law Firm, PC (2016) 12
13 Animal Control Strickland Part II Lira v. Greater Houston German Shepherd Dog Rescue, Inc., No , 2016 WL (Tex. April 1, 2016) (per curiam). Another dog tail. Bojorquez Law Firm, PC (2016) 13
14 Animal Control Strickland Part II Lira v. Greater Houston German Shepherd Dog Rescue, Inc. City ordinances allow either euthanization or adoption after seven days City animal who is adopted and not retrieved within 30 days loses possession of animal Strickland: a beloved companion dog is not a fungible, inanimate object like, say, a toaster. Dictionary, dictionary, dictionary: ordinances do not divest owner of dog ownership Bojorquez Law Firm, PC (2016) 14
![Tort Claims Act-Dog Bite City of Houston v. Roman, No. 01-15-01042-CV, 2016 WL 3748851 (Tex. App. Houston [1st Dist.] July 12, 2016) (mem. op.). Jake is an 8-yr-old Belgian Malinois.](/docs-images/78/77145278/images/15-0.jpg "He is a smaller canine weighing about 55 lbs., but don t let the size fool you. He is what we all a leaper. When he is commanded to go on attack he will leap 10-12 feet to hit the suspect hard.")
15 Tort Claims Act-Dog Bite City of Houston v. Roman, No CV, 2016 WL (Tex. App. Houston [1st Dist.] July 12, 2016) (mem. op.). Jake is an 8-yr-old Belgian Malinois. He is a smaller canine weighing about 55 lbs., but don t let the size fool you. He is what we all a leaper. When he is commanded to go on attack he will leap feet to hit the suspect hard. You would never know Jake is 8-yrs-old if you were to see him in action. He has a lot of energy and loves to work. Jake has the most captures on dayshift. Bojorquez Law Firm, PC (2016) 15
16 Tort Claims Act-Dog Bite City of Houston v. Roman, No CV, 2016 WL (Tex. App. Houston [1st Dist.] July 12, 2016) (mem. op.). Used dog to locate kid, not bite him, so not intentional. Properly pled negligent use of Jake the dog. Properly denied plea to the jurisdiction. Bojorquez Law Firm, PC (2016) 16
17 Sign Regulation: Reeding Texas Highway Beautification Act Auspro Enterprises, LP v. Texas Dep't of Transp., CV, 2016 WL , at *1 (Tex. App. Austin Aug. 26, 2016, no. pet. h.). Bojorquez Law Firm, PC (2016) 17
18 Texas Stop Sign In Auspro, the court stated that under Reed's framework, the Texas Act's outdoor-advertising regulations and associated Department rules are, on their face, content-based regulations of speech. That is a statute s (or ordinance s) death sentence.» Too many sign exclusions equals underinclusive Bojorquez Law Firm, PC (2016) 18
19 Life after Reed However: Also, the provisions in Subchapter I are not affected by our decision here because they authorize the State to regulate commercial speech along certain specified highways, specifically off-premise signs displaying messages regarding goods, services, or merchandise. Bojorquez Law Firm, PC (2016) 19
20 More Signs Reagan Nat l Advert. of Austin, Inc. v. City of Austin, No CV, 2016 WL (Tex. App. Austin June 15, 2016). Is a billboard registration fee a tax? Federal court says yes. Issue preclusion. It s a tax. Bojorquez Law Firm, PC (2016) 20
21 More Signs Lamar Advantage Holding Co. v. City of Stephenville, No CV, 2016 WL (Tex. App Eastland June 9, 2016) (mem. op.). Trespass to try title case. Reservations from and exceptions to Conveyance and Warranty unrecorded lease to BYO Standard four corners: did the deed allow previous owner to continue leasing the property for billboards? Court answered No. Bojorquez Law Firm, PC (2016) 21
22 Civil Forfeiture State of Texas v. One (1) 2004 Lincoln Navigator, No , 2016 WL (Tex. June, 10, 2016). Even without a criminal conviction they can keep your car. Even if the search is illegal, they can keep your car. Just have to prove it s Ch. 59 contraband Black Infiniti G3S v. State of Texas, No CV, 2016 WL (Tex. App.---Fort Worth Aug. 31, 2016). Bojorquez Law Firm, PC (2016) 22
23 Age Discrimination Bazaldua v. City of Lyford, No CV, 2016 WL (Tex. App Corpus Christi Sept. 1, 2016) (mem. op.). Texas Commission on Human Rights Act. proof of age discrimination Viejo (not proximate in time) Replaced by an older worker Bojorquez Law Firm, PC (2016) 23
24 Chapter 614 Complaint Paske v. Fitzgerald, No CV, 2016 WL (Tex. App. Houston [1st Dist.] June 23, 2016). Supervisor terminated based on misconduct he observed. Not every adverse employment action against a peace officer has to be accompanied by a 614 complaint. Bojorquez Law Firm, PC (2016) 24
25 Thank you! Bojorquez Law Firm, PC (2016) 25
26 If you like this material, please follow us on Bojorquez Law Bojorquez Law Firm, 26
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