RECENT STATE CASES OF INTEREST TO CITY OFFICIALS

Transcription

1 RECENT STATE CASES OF INTEREST TO CITY OFFICIALS Presented to: TEXAS CITY ATTORNEYS ASSOCIATION TEXAS MUNICIPAL LEAGUES ANNUAL CONFERENCE Dallas, Texas November 8, 2007 Presented by: PATRICK C. BERNAL MIGUELANGEL MATOS DENTON, NAVARRO, ROCHA & BERNAL, P.C N. Main Avenue San Antonio, Texas / / (Fax)

2 TABLE OF CASES Sovereign Immunity Reed v. Prince, 194 S.W.3d 101 (Tex.App. Texarkana 2006 pet. denied)...1 City of McAllen v. Zellers, 216 S.W.3d 913 (Tex.App. Corpus Christi 2007)...1 Dallas Fire Fighters Ass n v. City of Dallas, --- S.W.3d ----, No , 2007 WL (Tex. June ) (per curiam)...1 Wallace v. Texas Department of Health ---S.W.3d---, No CV, 2007 WL (Tex.App.-Austin, August 28, 2007)...1, 2 Galveston vs. State of Texas 217 S.W.3d 466 (Tex. 2007)...2 Texas A&M University System v. Koseoglu, --- S.W.3d ----, No , 2007 WL (Tex. September 7, 2007)...2, 3 Unconstitutional Takings Aspenwood Apartment Corp. v. Link--- S.W.3d--- No CV, 2007 WL (Tex.App.-Houston [1 Dist.], September 27, 2007)...3, 4 City of San Antonio v. En Seguido Ltd., 2007 WL (Tex.App. San Antonio March 14, 2007, no pet.)...4 City of Helotes v. Miller, 2007 WL (Tex.App. San Antonio 2007)...4 City of San Antonio v. TPLP Office Park Properties Ltd., 2007 WL (Tex. 2007)...4, 5 Attorney s Fees- Settlement Offer Vernon v. CAC Distributors S.W.3d, No CV, 2007 WL (Tex.App. Hous. (1 Dist.) Aug. 9, 2007)...5 Open Meetings Act Fiske v. City of Dallas, 220 S.W.3d 547 (Tex.App Texarkana 2007, no pet.)...5, 6 ii

3 Employment Claims San Antonio Water System v. Odem ---S.W.3d---, No CV, 2007 WL (Tex.App.-San Antonio, August 22, 2007)...6, 7 City of La Joya v. Ortiz ---S.W.3d---, 2007 WL No CV (Tex.App.-Corpus Christi February 1, 2007)...7, 8 Mendoila v. City of Laredo ---S.W.3d----, No CV, 2007 WL (Tex.App. San Antonio, September 12, 2007)...8 County of Dallas v. Wiland 216 S.W.3d 344 (Tex. 2007)...8, 9 United Services Auto. Ass'n v. Brite, 215 S.W.3d 400 (Tex. 2007)...9 Declaratory Judgment Act Lowell v. City of Baytown, ---S.W.3d---, No CV, 2007 WL (Tex.App.- Houston [1 Dist.] August 9, 2007)...9, 10 City of Houston v. Williams 216 S.W.3d 827 (Tex. 2007)...10 City of Round Rock v. White Aker, 2007 WL (Tex.App. Austin 2007)...10, 11 Annexation In re Spiritas Ranch Enterprises, L.L.P., 218 S.W.3d 887 (Tex.App.-Fort Worth March 22, 2007)...11 City of Cresson v. City of Granbury, 2007 WL (Tex.App. Ft. Worth, 2007, no pet.)11, 12 Official Immunity Thomas v. Karnes County ---S.W.3d---, 2007 WL (Tex.App.-San Antonio 2007)...12, 13 Green v. Alford --- S.W.3d ----, 2007 WL No CV (Tex.App. Houston [14 Dist.] March 27, 2007 no pet.)...13 iii

4 Open Records Jackson v. Biscoe, in his official capacity as Travis County Judge ---S.W.3d---, No CV, 2007 WL (Tex.App. Austin October 2, 2007)...14 Whistleblower Act Koebrick v. Victoria County, ---S.W.3d---, No CV, 2007 WL (Tex.App.- Corpus Christi, August 30, 2007)...14 Hurley v. Tarrant County, ---S.W.3d WL , No CV (Tex.App.-Fort Worth August 2, 2007)...14, 15 Texas Department of Criminal Justice v. McElyea, --- S.W.3d ----, No CV, 2007 WL (Tex.App.-Austin, July 26, 2007)...15 Texas Dept. of Human Services v. Okoli No CV, 2007 WL (Tex.App.- Houston [1 Dist.] June 28, 2007)...16 Breach of Contract Kalyanaram v. University of Texas System --S.W.3d ---, 2007 WL No CV (Tex.App.-Dallas, August 7, 2007)...16, 17 Bexar Metropolitan Water Dist. v. Education and Economic Development 220 S.W.3d 25 (Tex.App.-San Antonio 2006 pet. filed)...17, 18 Ben Bolt-Palito Blanco Consol. Independent School Dist. v. Texas Political Subdivisions Property/Casualty Joint Self-Insurance Fund 212 S.W.3d 320 (Tex. 2006)...18 S.E. Ranch Holdings Ltd. v. City of Del Rio, 2007 WL (Tex.App. San Antonio 2007, no pet.)...18, 19 City of Pasadena v. Crouch/KST Enters., Ltd., No CV 2007 WL (Tex. App. Houston [1 Dist.] Aug. 02, 2007) (mem. op.)...19 City of Carrollton v. Craig B. Singer, --- S.W.3d ---, No CV, 2007 WL (Tex. App. Fort Worth Aug. 2, 2007)...19, 20 Tooke v. City of Mexia 197 S.W.3d 325 (Tex. 2006)...20 Texas Disposal Systems Landfill, Inc. v. Waste Management Holdings, Inc., 219 S.W.3d 563 (Tex.App Austin 2007)...20, 21 iv

5 Tort Claims Act Texas Dept. of Transp. v. Gutierrez --- S.W.3d ----, No CV, 2007 WL (Tex.App.-San Antonio, September 5, 2007)...21, 22 Brazoria County v. Colquitt 226 S.W.3d 551 (Tex.App.-Houston [1 Dist.] 2007 no pet. h.)...22 Bexar Metropolitan Water Dist. v. Evans---S.W.3d---, No CV, 2007 WL (Tex.App. San Antonio September 5, 2007)...22, 23 Reata Const. Corp. v. City of Dallas 197 S.W.3d 371 (Tex. 2006)...23 City of Houston v. Mary M. Babin Kennedy, ---S.W.3d---No CV, 2007 WL (Tex.App. Houston [1 Dist.] August 2, 2007) (mem. op.)...23, 24 City of Arlington v. Matthews, 226 S.W.3d 417 (Tex. 2007) (per curiam)...24 City of Pasadena v. Kinsel Industries, Inc., 227 S.W.3d 651 (Tex. 2007)...24 Home Rule Powers Greater New Braunfels Home Builders Ass'n v. City of New Braunfels, --- S.W.3d WL No CV (Tex.App.-Austin August 1, 2007 pet. filed)...24 Miscellaneous Hart v. State, --- S.W.3d ---, 2007 WL (Tex.App. Eastland 2007)...24, 25 Lockwood v. State, --- S.W.3d ---, 2007 WL (Tex.App. Waco 2007)...25, 26 v

6 Sovereign Immunity Reed v. Prince, 194 S.W.3d 101 (Tex.App. Texarkana 2006 pet. denied) A citizen sought the removal of the County sheriff and damages resulting from alleged property crimes. He sought a refund of property taxes which the citizen alleged were allotted for law enforcement services he did not receive. The court held the citizen lacked standing to remove the sheriff from office. Only a quo warranto proceeding brought by the district or county attorney or attorney general could properly seek removal of the sheriff. The court further held the county was immune from the damages claim under the Texas Tort Claims Act, which does not waive governmental immunity for claims involving the adequacy of police protection. Finally, the court held they did not have jurisdiction to entertain the citizen s claim for a refund of taxes. The court gladly upheld the dismissal of the case by plea to the jurisdiction without affording the citizen an opportunity to amend his petition. City of McAllen v. Zellers, 216 S.W.3d 913 (Tex.App. Corpus Christi 2007 pet. denied) From 1996 to 2002, several police officers were placed on standby duty during the weekends and holidays. Standby duty meant that the officers were obligated to make themselves available to report for duty at a moment s notice. They were prohibited from leaving the immediate area, from obtaining other employment, from participating in activities that would impair their ability to immediately report for duty. In its plea, the City argued that its Police Department Handbook imposed a grievance procedure that must be followed prior to bringing suit in District Court. It asserted that the failure to follow the procedure deprived the district court of subject matter jurisdiction over the officers common-law claims. The Court disagreed, holding that it could not locate nor had been directed to any applicable statute that allows a municipality to create a grievance procedure for its police officers and require compliance as a prerequisite to jurisdiction in the district court. Thus, the City could not raise an issue that can be jurisdictional. Dallas Fire Fighters Ass n v. City of Dallas, --- S.W.3d ----, No , 2007 WL (Tex. 2007) The Dallas Fire Fighters Association and individual fire fighters sued the City of Dallas, objecting to the city s use of an oral assessment test performed by an outside contractor in making promotion decisions. The trial court granted the city s plea to the jurisdiction on governmental immunity grounds and the court of appeals affirmed. The fire fighters argued that language in the city s charter waives its sovereign immunity. The Supreme Court of Texas reversed the court of appeals opinion and remanded the case to the trial court, holding that the city s charter did not waive sovereign immunity under Tooke v. City of Mexia, but also holding that the fire fighters should have a chance to argue that the city s immunity was waived for a different reason. Wallace v. Texas Department of Health --- S.W.3d---, No CV, 2007 WL (Tex.App.-Austin, August 28, 2007) After receiving information in January 2002 concerning similarly situated employees' 1

7 salaries, Wallace filed a Charge of Discrimination in July 2002 with the Equal Employment Opportunity Commission against the Department. In the complaint, Wallace specified that his discrimination complaint was also to be filed with the applicable state agency, the Texas Commission on Human Rights ( Commission ). The EEOC sent Wallace a letter in August 2002 that notified him of his right to institute a civil action under Title VII of the Civil Rights Act of The court found that Wallace's allegations did not satisfy his burden to demonstrate that the State has consented to suit for the claims that he has made. Wallace failed to assert factual allegations that demonstrate the state consented to suit for his breach of contract claims against the Department and the individuals in their official capacities. Similarly, the court found that Wallace failed to plead facts under the Texas Tort Claims Act to support jurisdiction for his tort claims. The court concluded that the trial court correctly found that it lacked jurisdiction to hear Wallace's tort, breach of contract, and money damages claims based upon sovereign immunity. The court however reversed the dismissal of Wallace s claim under the TCHRA. The court held that although the Commission has exclusive jurisdiction over a TCHRA claim during the 180-day administrative period, upon its expiration, subject matter jurisdiction over any suit asserting the TCHRA claim vest in the judicial branch. Galveston vs. State of Texas 217 S.W.3d 466 (Tex. 2007) The State, on behalf of Texas Department of Transportation, brought action against a home-rule city, alleging negligence in the installation, maintenance, and upkeep of a municipal water line that ran underneath a State highway. The District Court, granted the city's jurisdictional plea and dismissed the cause. The State appealed. The Supreme Court, held that state's suit against city was impermissible, in absence of clear and unambiguous consent from Legislature for waiver of immunity from suit with respect to suits by state against cities for money damages. Texas A&M University System v. Koseoglu, --- S.W.3d ----, No , 2007 WL (Tex. 2007) In 1999, while still employed by Texas A & M, Koseoglu began moonlighting for a private business enterprise he partially owned. In early 2002, soon after McLellan became Koseoglu's supervisor, Koseoglu requested permission to continue his outside employment. McLellan denied Koseoglu's request. Koseoglu nevertheless continued the outside employment and, in October 2002, McLellan informed Koseoglu that his employment would be terminated at the end of the following month. Koseoglu sued McLellan and Texas A & M for breach of contract, asserting they breached the alleged December 19 agreement between Koseoglu and Texas A&M. The university and McLellan each pled the affirmative defense of sovereign immunity and filed pleas to the jurisdiction. Koseoglu filed a motion for summary judgment, contending in part that Texas A&M's and McLellan's sovereign immunity had been waived for his breach of contract action because it had been waived for an underlying action under 42 U.S.C in which Koseoglu asserted a denial of due process with respect to his employment contract with Texas A&M. Four months after Texas A&M and McLellan filed their 2

8 pleas to the jurisdiction, the trial court denied them. Before the trial court ruled on Koseoglu's motion for summary judgment, Texas A&M and McLellan each filed an interlocutory appeal. The court of appeals reversed the trial court's denial of Texas A&M's plea to the jurisdiction and dismissed McLellan's interlocutory appeal for want of jurisdiction. The court of appeals concluded that governmental entities do not waive their immunity from suit in Texas by accepting benefits under a contract, and that Koseoglu's pleadings against Texas A & M did not fit the narrow exception suggested by the plurality in Texas A & M University- Kingsville v. Lawson, 87 S.W.3d 518 (Tex.2002), because Koseoglu's underlying Section 1983 claim was not one for which sovereign immunity had been waived. The Supreme Court held that it would be irrational for the Legislature to have intended that a governmental unit be the only person who may appeal from an interlocutory order because a governmental unit would have no reason to appeal the grant of a plea to the jurisdiction. For the entire phrase grants or denies to be given effect, the statute must allow an appeal to be filed by both a non-governmental plaintiff challenging the grant of a plea to the jurisdiction and a governmental defendant challenging the denial of one. Given that Section (a)(8) necessarily applies to entities other than governmental units, there was no basis for construing it to exclude state officials sued in their official capacity. Unconstitutional Takings Aspenwood Apartment Corp. v. Link--- S.W.3d--- No CV, 2007 WL (Tex.App.-Houston [1 Dist.], September 27, 2007) The City of Houston ( the City ) filed a lawsuit seeking to enjoin Yetiv from making repairs to certain properties without necessary building permits. Yetiv counterclaimed against the City, joining Huey, a former City Council member, and Link, Assistant Director of Neighborhood Protection, as counter-defendants. In his counterclaim, Yetiv alleged malicious prosecution and abuse of process; tortious interference with contracts; and section 1983 claims for unconstitutional takings of property, retaliation for asserting First Amendment rights, illegal searches, and due process violations. In addition, he requested a declaratory judgment for takings and due course of law violations under the Texas Constitution caused by improperly withholding permits. Yetiv sought actual damages, punitive damages, attorney s fees, and injunctive relief. The trial court dismissed claims asserted against city officials but allowed the first amendment retaliation and the substantive due process claims against the City to proceed to trial. The jury held the City acted arbitrarily and capriciously by denying or withholding permits for work on the apartments. On the first appeal, the court reversed the verdict against the City and rendered that the property owner take nothing; the court however reversed the summary judgment granted to city officials and remanded the case to the trial court for trial. The trial court, on remand, dismissed the property owner s claim against city officials by special exceptions and summary judgment. On the second appeal, the court held that plaintiff failed to assert a viable taking claim because plaintiff failed to show that the city official was acting under color of authority pursuant to official policies adopted by the 3

9 Houston City Council. The Court determined that there was no evidence that (1) the Houston City Council executed a policy statement, ordinance, regulation, or decision to demolish or illegally search lowincome housing or withhold permits or (2) of a persistent, widespread, permanent, and well-settled custom or usage to demolish or illegally search low-income housing or withhold building permits. Therefore, plaintiff could not adequately show color of authority for a taking claim. City of San Antonio v. En Seguido Ltd., 2007 WL (Tex.App. San Antonio March 14, 2007, no pet.) A developer claimed vested rights based on a plat filed in The plaintiff purchased 27 acres and paid impact fees for 154 lots which were to be for development of singlefamily residential homes. The developer filed a declaratory judgment action arguing that vested rights attached to the 1971 plat, which served to lock in land use regulations that existed at that time. The city countered that vested rights attached only to a specific project and that the project planned by the developer was not the same one that was platted in The court of appeals held that once a project is altered, development regulations are no longer locked in under Chapter 245 and current development regulations apply. The court rejected the city s argument that a plat cannot invoke vested rights. However, the court found substantial evidence existed that the project had changed; therefore land use regulations in existence at the time of plat filing did not vest rights. City of Helotes v. Miller, 2007 WL (Tex.App. San Antonio 2007) A property owner sued the city claiming vested rights that preexisted the city s annexation of the property owner s tract, which he intended to develop for commercial use. Prior to annexation, the property owner contracted with Wal-Mart. Due to a local citizen outcry, Wal-Mart withdrew from the project; however, prior thereto, Wal-Mart, as the property owner s designated representative, applied for a driveway permit and water service. The property owner filed a declaratory judgment action opposing the city s zoning regulations imposed after annexation and pleading for vested rights in building regulations in effect at the time Wal-Mart applied for permits. The city filed a plea to the jurisdiction asserting ripeness and mootness issues in connection with Wal-Mart s withdrawal from the project. The trial court denied the city s plea to the jurisdiction. The appellate court affirmed. The court held a fact issue exists to determine whether the property owner will develop the land as contemplated at the time Wal-Mart originally applied for permits. The court relied on the vested rights statute, Section , Texas Local Government Code, and the Municipal Annexation Act, , which restricts a city s zoning powers if within 90 days before the effective date of an annexation, a property owner has applied for a license or permit for a planned land use. City of San Antonio v. TPLP Office Park Properties Ltd., 2007 WL (Tex. 2007) A local business owner brought suit to contest the validity of the city s closure of a private driveway connecting a public street in a business park to a public street in a residential neighborhood. The business owner claimed that 80% of the business park s tenants used the driveway to access the business park and therefore the closure 4

10 of the driveway resulted in an unconstitutional taking. The city countered that legitimate interests in safety and separation of commercial traffic from a residential neighborhood to improve the residents quality of life were valid regulations. The trial court and court of appeals held that the closure of a driveway constituted an unconstitutional taking. The Texas Supreme Court reversed and held that the rational relationship test applies to substantive due process claims. The court found that the city s decision to close the driveway must be upheld if it is at least fairly debatable that the decision was rationally related to legitimate governmental interests. The court found that the city s evidence supported the city s claim that safety and quality of life in a residential neighborhood would be improved by the closure. Attorney s Fees Settlement Offer Vernon v. CAC Distributors S.W.3d, No CV, 2007 WL (Tex.App. Hous. (1 Dist.) Aug. 9, 2007) Prior to trial Plaintiff twice rejected offers of $5,500. The trial Court awarded Plaintiff s Attorney $5,500 in Attorney s fees out of the 16,500 requested. The Court reasoned that at thirty hours at $ per hour, a total fee of $5,550, corresponded with Plaintiff s attorney's estimate of time worked on the case before Defendants first offer of settlement, admitted for the purpose of drawing a line, or a mark in the time line, at which point [CAC] believed any attorney's fees beyond that were unreasonable. By awarding attorney's fees in an amount incurred only prior to the settlement offers, the court implicitly found to be unreasonable any time worked on the case beyond the offers. Vernon also asserted that the settlement offers were not admissible under the FLSA because no Johnson factor calls for the use of settlement negotiations in adjusting the lodestar amount up or down. Rule 408 states that an offer to settle or compromise a claim is not admissible to show liability, the validity of the claim, or the amount of the claim. Haney v. Purcell Co., 796 S.W.2d 782, 788 (Tex.App.- Houston [1st Dist.] 1990, writ denied). It does not require exclusion when the evidence is offered for another purpose. The evidence was offered for the exclusive purpose, according to CAC, of aiding the court in determining the reasonableness of Vernon's attorney fees. The Court concluded that the trial court abused its discretion by determining that Rule 408 does not prohibit the admission of the settlement negotiations on the limited matter of the reasonableness of the number of hours worked by the attorney. Open Meetings Act Fiske v. City of Dallas, 220 S.W.3d 547 (Tex.App Texarkana 2007, no pet.) A former municipal court judge sued the city seeking reinstatement after the city council declared municipal judge positions vacant and the judicial nominating commission failed to recommend her for reappointment. After the Dallas City Council declared all municipal judge positions vacant, it appointed a citizens advisory commission to recommend nominations to the city council for vacant judge positions. The citizen committee interviewed persons but did not 5

11 recommend Fiske for reappointment. Fiske contended that the citizen committee violated the open meetings act by failing to give notice of meetings and failing to preserve written minutes or tape recordings of proceedings. The city countered that the citizen committee did not fail to give notice of meetings or prepare minutes and that the citizens committee was not a governmental body under the Act. The city also contended the city council filled the vacant positions within 91 days after Fiske s term expired and therefore she did not become a holdover in office. The judge of a municipal court serves for a term of office for two years unless the municipality provides for a longer term under Article XI, Section 11 of the Texas Constitution. A judge who is not reappointed by the 91 st day following expiration of the term of office continues to serve for another term beginning on the date the previous term expired. The court held that Fiske s claim was moot because the city appointed a new judge within the 91 day window and therefore she was not a holdover judge under Section , Texas Government Code. The court also held that the citizens committee was not a governmental body under the Open Meetings Act. The definition of governmental body includes a deliberative body that has rule making or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality. The citizens committee was not part of the city council, was not a committee of the city council, and its members were not members of the city council but private citizens. Members of the citizen committee were appointed by individual council members in a private capacity; therefore the committee members were not appointed by the city council or mayor. Furthermore, the committee had no decision making authority but could only recommend candidates for judgeships to the city council. Since the committee s power to exercise judgment and discretion was limited to an advisory role, they did not possess quasi-judicial power. Furthermore, although the Dallas city charter required all meetings of the city council and city council committees must be open to the public as provided by state law, the court held that the citizen committee was not a city council committee and therefore was not required to comply with the Act. Employment Claims San Antonio Water System v. Odem --- S.W.3d---, No CV, 2007 WL (Tex.App.-San Antonio, August 22, 2007) Rufus Odem, director of internal audit at SAWS, filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the civil rights division of the Texas Workforce Commission ("TWC"), alleging that SAWS discriminated against him based on his race and age. Odem amended his charge to include allegations that SAWS retaliated against him in an incident occurring after he filed his charge. He amended his charge again to include allegations of retaliation occurring after he filed his previous amendment. The EEOC issued a determination concluding that SAWS discriminated against Odem based on his race and in retaliation for his opposition to discrimination. The TWC sent Odem a letter informing him he had the right to file a civil action. Odem filed suit against SAWS the same month. A month after filing suit, Odem filed a second charge with the EEOC and TWC, 6

12 alleging discrimination and retaliation that occurred after he filed amendments to the first charge. In January of 2007, SAWS placed Odem on administrative leave. Later that month, Odem filed a petition for injunction against SAWS, asking the court to issue a temporary injunction requiring SAWS to either return Odem to work or keep him on paid administrative leave, and prohibiting SAWS from terminating Odem's employment or changing his pay or benefits until the court entered a final judgment in the case. In response, SAWS filed a plea to the jurisdiction, alleging that the trial court lacked subject-matter jurisdiction because: (1) Odem had not exhausted his administrative remedies; and (2) Odem did not have standing to seek temporary injunctive relief. Odem then filed an amended petition, which included an allegation that SAWS retaliated against him for filing a charge by placing him on administrative leave. The trial court denied SAWS' plea to the jurisdiction. A person claiming a violation of Chapter 21 must exhaust all administrative remedies before bringing a civil suit. To exhaust administrative remedies under Chapter 21, a person must file a complaint with the TWC within 180 days of the alleged unlawful employment practice. This case involves a post-charge act - placing Odem on administrative leave - that grew out of the earlier charge in that it was allegedly done in retaliation for filing the charge. The court held that because Odem's claim that he was placed on administrative leave in retaliation for filing a charge grew out of an earlier charge, the Court found that the trial court had ancillary jurisdiction over the claim and that Odem was not required to file a separate charge. The court also held that Chapter 21 does not authorize temporary injunctive relief. Therefore, Odem s request for temporary injunctive relief requiring SAWS to either return him to work or keep him on paid administrative leave was properly dismissed. City of La Joya v. Ortiz ---S.W.3d---, 2007 WL No CV (Tex.App.- Corpus Christi February 1, 2007) Ortiz worked as a radio dispatcher for the City of La Joya Police Department. Ortiz alleges that during her employment with the City she was sexually harassed by her supervisor, Chief Casanova. She claims that on several occasions, from May 2002 through May 2004, she was forced by Casanova to perform oral sex and engage in unprotected sexual intercourse with him. In May 2004, Ortiz reported the sexual harassment to the City. Ortiz also filed a complaint with the Texas Workforce Commission and the EEOC. After the TWC dismissed her complaint and issued a rightto-sue letter, Ortiz filed suit against the City. In its plea, the City argued that the last alleged act of discrimination occurred on May 1, 2004 and that Ortiz's administrative complaint was untimely filed because it was not received by the TWC until November 1, 2004, 184 days after the date of the last act of discrimination. The City argued that Ortiz's complaint should have been filed no later than October 28, Ortiz responded that because she mailed the administrative complaint on October 28, 2004, she complied with the 180-day filing requirement of section The court held that although the charge itself contained no allegations regarding retaliatory practices being taken against Ortiz, the Intake Questionnaire did. The Court reasoned that the basis of Ortiz's retaliation claim, that she was threatened as a result of filing her sexual harassment 7

13 complaint, could be expected to grow out of her charge. Thus, it was unnecessary for Ortiz to file a second complaint. Mendiola v. City of Laredo ---S.W.3d----, No CV, 2007 WL (Tex.App. San Antonio, September 12, 2007) Mendiola asserts that if a vacancy in the driver position was created by Benavides's promotion on February 20, 2005, then Mendiola would have been promoted to driver by operation of law on the sixtieth day following the date of the vacancy, which would have been April 21, Mendiola was actually promoted on April 20, Appellant, Xavier E. Villela was the highestranking candidate for the position vacated by Mendiola, which was the assistant driver position. Villela asserts that if the vacancy in the assistant driver position was created by the promotion of Mendiola to driver on April 21, 2005, then Villela would have been promoted to assistant driver by operation of law on the sixtieth day following the date of the vacancy, which would have been June 20, Villela was not promoted to assistant driver until October 18, 2005, following another vacancy subsequent to the vacancy created by Mendiola's promotion. Appellants contend that if Villela had been promoted to assistant driver by operation of law on June 20, 2005, the subsequent promotion of October 18, 2005 would have gone to the next highest-ranked candidate, appellant Juan C. Jalomo. The act of filling a vacant position through the procedures outlined in the Local Government Code is not an act committed to the discretion of a local fire chief. Klinger v. City of San Angelo, 902 S.W.2d 669, 673 (Tex.App.-Austin 1995, writ denied). The department head has a mandatory duty to promote an eligible employee to fill an opening in a legally created civil service position. Int'l Ass'n of Firefighters, Local Union No. 936 v. Townsend, 622 S.W.2d 562, 563 (Tex.1981); Klinger, 902 S.W.2d at 673. However, factors beyond a city's control can affect strict compliance. Klinger, 902 S.W.2d at 677. Here, the City was prevented from timely conducting the fire captain promotional examination because of the injunction obtained by two firefighters. However, the City's failure to timely conduct the examination was due to factors within its control. The City was not prevented from conducting the examination because it was faced with competing statutory obligations. In fact, the City did not schedule the promotional examination for fire captain until after the requisite ninety days had elapsed The Court held that under City of Houston and City of Sweetwater, the City's immunity from suit for monetary damages under section TEX. LOC. GOV CODE is not waived County of Dallas v. Wiland 216 S.W.3d 344 (Tex. 2007) Before taking office on January 1, 2001, newly-elected Dallas County Constable Mike Dupree sent letters to [three] deputy constables, notifying them that your services under my administration will not be required. He did not say why. After taking the oath of office, Dupree refused to administer the oath to the three deputies and collected their badges and weapons. The court held that covered employees cannot be discharged without just cause, thus they have a property interest in continued employment. The deputies were 8

14 discharged without the hearing before the civil service commission promised by system rules to determine whether just cause existed, and thus they were denied procedural due process. The Court further found that having been denied procedural due process, the deputies could recover damages for injuries resulting from the loss of employment only if just cause did not exist for their termination However a government employee's interest in continued employment is not protected by substantive due process, and even if it were, the County's decision to discharge the constables was not arbitrary and capricious so as to violate substantive due process. United Services Auto. Ass'n v. Brite 215 S.W.3d 400 (Tex. 2007) Former employee brought action against employer to recover for age discrimination. The County Court at Law, denied the employer's plea to jurisdiction and entered judgment on jury verdict in favor of employee. The employer appealed. The San Antonio Court of Appeals, affirmed. The Supreme Court held that for purposes of determining the amount in controversy, the question is not what a plaintiff will recover or is likely to recover; it is what the plaintiff seeks to recover. The jurisdictional statute for county courts at law values the matter in controversy on the amount of damages alleged by the plaintiff, not on the amount the plaintiff is likely to recover. The Court found that although the statute excludes several items when determining the amount in controversy, front pay is not among them. See Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, (Tex.1999) (doctrine of expression unius est exclusio alterius-the inclusion of a specific limitation excludes all others-a statutory interpretation tool of some use under these circumstances). Moreover, the statute is not ambiguous, and courts are required to interpret unambiguous language according to its plain meaning. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). Because the statute bases jurisdiction on the damages alleged on the face of the petition and makes no exclusion based on the plaintiff's likelihood of recovery, it does not allow front-pay damages to be excluded from the amount in controversy. The Court concluded that frontpay damages must be included when determining the amount in controversy. Declaratory Judgment Act Lowell v. City of Baytown, ---S.W.3d---, No CV, 2007 WL (Tex.App.-Houston [1 Dist.] August 9, 2007) Firefighters sued the City alleging they had not been paid their seniority pay when serving temporarily in higher classifications. They sought declaratory and injunctive relief and back pay under the Civil Service Act. On appeal, appellants contend their claims under the Declaratory Judgment Act do not implicate governmental immunity and that the City's immunity from suit is waived as to claims under the Civil Service Act. Each party filed a motion for summary judgment. The City filed a plea to the jurisdiction asserting that the City's governmental immunity from suit had not been waived and appellants had not exhausted administrative remedies. The trial court granted the City's plea and dismissed 9

15 appellants' claims for lack of subject matter jurisdiction. Appellants argued that (1) the trial court had jurisdiction under the Declaratory Judgments Act to construe the Civil Service Act; (2) waiver of the City's immunity from claims for back pay brought under the Civil Service Act has been established through 60 years of case law; and (3) the common-law doctrine of waiver of immunity applied because, otherwise, portions of the Civil Service Act would be rendered meaningless. A suit to construe a statute or ordinance does not implicate governmental immunity from suit. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). However, a party may not circumvent governmental immunity from suit by characterizing a suit for money damages as a declaratory judgment action. The relief requested by appellants in their petition included (1) a declaration that the City's failure to pay the base salary of the higher-graded positions along with a firefighter's own seniority pay violated Local Government Code sections and and (2) a permanent injunction prohibiting the City from future violation of the statutes. The court held that because appellants' requested declaration and injunction do not require the payment of money damages, the claims do not implicate governmental immunity. Therefore, the trial court had jurisdiction to construe the relevant sections of the Civil Service Act and to enjoin the City from failing to pay appellants consistent with the trial court's construction of the Act. City of Houston v. Williams 216 S.W.3d 827 (Tex. 2007) A group of retired firefighters sued the City of Houston to recover amounts deducted from payments they received upon termination of employment. The trial court denied the City's jurisdictional plea asserting governmental immunity and the Court of Appeals affirmed. In reversing the Court of Appeals the Supreme Court held that private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory judgment claim. The only injury the retired firefighters allege had already occurred, leaving them with only one plausible remedy-an award of money damages. As they asserted no right to payments from the City in the future, they lacked standing to seek a statutory interpretation on behalf of those currently employed. City of Round Rock v. Whiteaker, 2007 WL (Tex.App. Austin 2007) A fire department lieutenant sought declaratory, injunctive and mandamus relief to receive a promotion. The city filed a plea to the jurisdiction contesting the lieutenant s standing under Chapter 143, Texas Local Government Code, and asserting immunity from damages. The trial court denied the city s plea to the jurisdiction. The appellate court affirmed. The court held the lieutenant s declaratory, injunctive and mandamus relief were not barred by governmental immunity, but his claim for back wages and benefits were barred. The court stated the judiciary defers to the legislature to determine to what extent governmental immunity should be waived as these decisions entail sensitive policy judgments concerning the use of public 10

16 resources and governmental functions properly within the domain of the legislature. The court found the narrow waiver of immunity for back pay claims under Section did not constitute a general waiver of immunity from a back pay claim since the plaintiff did not invoke this particular provision. In doing so, the court rejected the plaintiff s contention that his back pay claim was equitable in nature as unjust enrichment. Annexation In re Spiritas Ranch Enterprises, L.L.P. 218 S.W.3d 887 (Tex.App.-Fort Worth March 22, 2007) Landowner brought action against a town seeking a declaratory judgment and a temporary and permanent injunction to enjoin the town from taking any action to annex the property according to fast-track annexation procedures until arbitration was completed. The landowner sought a temporary restraining order restraining the town from taking steps to annex the property before notice could be given and a hearing held on landowner's temporary injunction request. The District Court denied the temporary restraining order and the landowner petitioned for writ of mandamus. Faced with a landowner's attempt to assert its statutory right to arbitrate a dispute and thus attempt to require a municipality to include property within its three-year annexation plan before it is annexed according to fast-track procedures, a municipality could simply refuse to arbitrate and complete fast-track annexation proceedings leaving a landowner with no choice but to seek a quo warranto proceeding or attempt to disannex the property under the procedures set forth in Chapter 43. The Court held that, because public policy favors arbitration, it would make little sense to conclude that the legislature specifically granted a private landowner a right to pre-annexation arbitration without the ability to enforce that right. City of Cresson v. City of Granbury, 2007 WL (Tex.App. Ft. Worth, 2007, no pet.) This case involves an annexation dispute in which the cities of Cresson and Granbury claim jurisdiction over property. Cresson contends that the Municipal Annexation Act controls over the common law first-in-time rule and that its extra territorial jurisdiction expansion ordinances passed at the request of property owners are not void as claimed by Granbury. On May 3, 2005, Granbury began the process to accomplish a series of five, one-mile annexations along a state highway between Granbury and Cresson. At the time Granbury initiated the process, only the first mile of land was within Granbury s ETJ; the remaining four consecutive one mile areas were not in any city s ETJ. After Granbury passed a resolution, several land owners petitioned Cresson for inclusion in Cresson s ETJ. Before the Granbury City Council could vote on the annexation ordinances, Cresson adopted four ordinances accepting the land owners petitions, thereby expanding Cresson s ETJ to include their land. Thereafter, Granbury adopted the five sequential annexation ordinances. Granbury nonetheless claimed the Cresson ordinances were void because the properties were within Granbury s ETJ as extended by its annexation of the disputed tracts. Cresson filed suit seeking a declaration that Granbury s annexation was void because the disputed tracts were already in Cresson s ETJ. The parties filed competing motions 11

17 for summary judgment and the trial court granted Granbury s motion. Granbury contended that the common law first-in-time rule controls and that by indicating in a resolution its intention to sequentially annex the five tracts at the same time, it acquired priority over Cresson as to the disputed tracts upon passage of the resolution. The court of appeals held that the mere institution of annexation proceedings does conclude the annexation process and thus a municipality does not acquire jurisdiction over property until final passage of an annexation ordinance. The plain language of Section (a) providing that ETJ expands with the annexation, does not correspond that expansion does not occur until final passage of an annexation ordinance, rather than when annexation proceedings are first initiated. Thus when Cresson enacted its ordinance, no other city had jurisdictional rights to the disputed tracts. The court also overruled Granbury s contentions under the Texas Open Meetings Act that private conversations involving the annexation did not involve a quorum of the city council and therefore a violation could not be established. Official Immunity Thomas v. Karnes County, ---S.W.3d---, 2007 WL (Tex.App. San Antonio 2007) Karnes County and several area school districts entered into an Interlocal Cooperation Agreement creating a Juvenile Justice Alternative Education Program (JJAEP) with a boot camp component referred to as the Enrichment, Literacy, Insight for Tomorrow's Encouragement (ELITE) program. Karnes County contracted with the JJAEP to provide services to its residents. Neva Schmidt was the Chief/Facility Administrator of the JJAEP program. The stated purpose of the JJAEP is to benefit juveniles who have committed an offense or have been expelled from school with a structured environment, education, recreation, mentoring, counseling and family preservation. G.T., a minor, was participating in a ninetyday program at the ELITE boot camp. All participants in the program, which subjects participants to rigorous physical activity, were required to submit to a physical exam before participating in the physical exercises. Upon his admission to the program, G.T.'s physical exam was incomplete and the ELITE officials failed to obtain a signed consent form from G.T.'s parents allowing him to take part in the exercises. When G.T. arrived, the program provided G.T. with a colored t-shirt indicating he was eligible to participate in the exercises despite the lack of parental consent. After participating in rigorous physical exercise, G.T. went home on Friday evening. When his parents took him to the doctor on Monday, the doctor found G.T. suffered from severe heat injury requiring hospitalization. The Thomases allege that by failing to provide G.T. with the proper colored t-shirt, G.T. was forced to exercise, leading to his injuries, and that the program's delayed medical response to G.T.'s injury caused him harm. Schmidt asserted her qualified immunity divested the trial court of jurisdiction, and thus the trial court erred in not dismissing the section 1983 claims against her individually. Qualified immunity is available to a county official when sued in her individual capacity for a federal claim. 12

18 The Court found that Schmidt had the initial burden to raise and support her plea to the jurisdiction based on her defense of qualified immunity. See Perry v. Tex. A & I Univ., 737 S.W.2d 106, 110 (Tex.App.- Corpus Christi 1987, writ ref'd, n.r.e.) (requiring proof, such as affidavits, supporting the defendant's assertion of official immunity.) No evidence was submitted with Schmidt's plea to the jurisdiction to assist the trial court in determining whether the conduct complained of was discretionary. Schmidt's complaint is one that, under Miranda, goes to the merits of the case and requires evidence for its resolution. The Court concluded that absent any evidence, the trial court did not err in overruling the motion to dismiss the gross negligence claims against Schmidt in her individual capacity. Green v. Alford --- S.W.3d ----, 2007 WL No CV (Tex.App. Houston [14 Dist.] March 27, 2007 no pet.) A passenger sued a volunteer firefighter, both individually and as next friend of her minor son, for damages stemming from a collision between her car, in which a passenger and her son were riding, and a fire truck the firefighter was driving in response to a fire alarm. The driver of the vehicle, also sought to recover his damages. After a bench trial, the District Court entered judgment against the firefighter and he appealed. The parties agreed that Green satisfied two of the three elements of his affirmative defense of official immunity, namely, at the time of the accident he (1) was engaged in a discretionary duty that (2) was within the scope of his authority as a firefighter. To establish his good faith, Green testified that he weighed the need to respond quickly to the alarm against the risk of injury from entering the intersection on a red light. To minimize the risk, Green said (1) he activated his emergency lights and siren before leaving the station; (2) he slowed down as he approached the intersection; (3) before entering the intersection, he activated his air horn and looked in the direction of approaching traffic; (4) he saw that no vehicles were moving; (5) he believed his view of the far right lane of Fairmont Parkway was not obstructed and if it had been obstructed he would have stopped; and (6) he drove slowly enough that he could have stopped in time to avoid an accident if he had seen the Alfords' vehicle. Green contended he was entitled to official immunity as a matter of law because the Alfords presented no evidence, or in the alternative, factually insufficient evidence to raise a fact issue regarding whether he acted in good faith. The court held that after a defendant has offered evidence showing he acted in good faith, he is entitled to official immunity as a matter of law unless the plaintiff offers some evidence that no reasonable person in the defendant's position could have thought that the facts justified the defendant's conduct. The Court reasoned that the fact that a governmental employee was negligent does not defeat good faith. To rebut a defendant's showing of good faith so as to create a fact issue, the plaintiff must show that no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts. Driving an emergency vehicle in contravention of normal traffic laws, where a delayed response could prove fatal to one or more person, in crowded conditions is simply not an activity within the common experience of laymen. 13

19 Open Records Jackson v. Biscoe, in his official capacity as Travis County Judge, 2007 WL (Tex.App. Austin, October 2, 2007) Jackson submitted an open records request to Travis County seeking reports for the previous four years of administrative fees collected in seeking the name and address of each person against whom a fee was assessed, the style number and date of each case in which a fee was assessed, the nature and date of each violation for which each fee was assessed, the amount of the fee assessed and the amount collected and the nature and date of each case in which no fee was required due to dismissal, acquittal, or error. The County did not seek an opinion from the Texas Attorney General but responded to the request claiming that it did not possess any records responsive to the request or that the documents were not accessible. Jackson filed a petition for writ of mandamus under the Public Information Act in the district court, seeking to compel the Travis County Judge to disclose reports of administrative fees. Biscoe moved for summary judgment asserting that Jackson s request sought records of the judiciary, not records in the County s custody, therefore his request was not subject to the Act. The Court found that the County properly asserted that the records requested were records of the judiciary relating to the civil or criminal litigation in the Judge s Court and not subject to the Act. Whistleblower Act Koebrick v. Victoria County, 2007 WL (Tex.App.-Corpus Christi, August 30, 2007) Koebrick was hired as a full time health inspector. Her responsibilities included inspection of septic systems and enforcement of the county septic system order. In the course of her work, Koebrick cited Mr. Huffmaster for public health violations. Specifically, Huffmaster was charged for installing an on-site sewage facility without authorization. Huffmaster complained to county officials. After a closed executive session of commissioners' court, Koebrick's supervisor Dr. Cate, instructed or suggested Koebrick drop the criminal complaint against Huffmaster. Based upon her discussions with the assistant district attorney, Koebrick confirmed the charges were supportable and refused to dismiss the case against Huffmaster. After another executive session, Koebrick was demoted, and then days later, according to her, was fired on a pretexual basis. The Court found that the entire emphasis of Koebrick s case was placed on her meeting with the assistant District Attorney to better support her argument with her supervisor and others that she had a valid complaint against Huffmaster. Koebrick did not offer proof that she reported a violation of law by commissioners, her supervisor, or other public employee. Thus Koebrick failed to offer any evidence of an essential element under her Whistleblower claim. Hurley v. Tarrant County, 2007 WL (Tex.App.-Fort Worth August 2, 2007) Hurley contends that Chief Deputy Allen fired him not for the reasons stated in the termination notice but in retaliation for reporting two violations of law allegedly committed by Allen. First, Hurley alleged that, while he and Allen were serving a writ of execution on a business, Allen removed a 14