The legal structure of local government has received great scrutiny this year as the COVID-19 pandemic has forced all levels of state government to review the emergency powers granted by the Texas Government Code. Less-trendy but also-fundamental aspects of local government operation were at issue in Carruth v. Henderson, when a citizen sought mandamus relief to require the City of Plano to consider a referendum petition about the City’s comprehensive development plan. The Fifth Court expressed sympathy for the City’s position, but found that under the applicable statutes, it had a ministerial duty to accept the petition as “neither the [City] Charter nor the general law has withdrawn comprehensive plans either expressly or by necessary implication from the field in which the referendum process operates …” No. 05-19-01195-CV (July 22, 2020). I am quoted in an excellent column about this situation by Sharon Grigsby in the July 28 Dallas Morning News.

After a bidding process, TXU entered into a contract with Fort Bend I.S.D. in 2010 to supply electricity for one year. The following year, the parties extended the contract period to 2014. But in 2012, the school district decided not to continue purchasing electricity because the extension has not been competitively procured as required by the Texas Education Code. TXU sued, but the trial court granted the school district’s plea to the jurisdiction based on governmental immunity. The Court of Appeals affirmed. Because the extension had not gone through a competitive bidding process, it was not “authorized by statute,” and therefore there was not waiver of governmental immunity under the Local Government Contract Claims Act.

TXU Energy Retail Co. L.L.C. v. Fort Bend Indep. Sch. Dist., No. 05-14-01515-CV

The United Food & Commercial Workers Union sought to collectively bargain on behalf of the employees of the Texoma Area Paratransit Systems, a rural transit district. TAPS sued for a declaratory judgment that, as a government subdivision, it was prohibited from collectively bargaining by Chapter 617 of the Texas Government Code. A Grayson County trial court granted summary judgment for TAPS and (more than a year later) awarded its attorney fees. The Dallas Court of Appeals affirmed, rejecting the union’s claim that TAPS’s declaratory judgment action was preempted by federal labor law. Despite 12 years of collective bargaining between TAPS and the union, state law still prohibited collective bargaining with a government entity, and that meant that TAPS was indeed entitled to summary judgment on the issue.

United Food & Commercial Workers Union Local 1000 v. Texoma Area Paratransit Sys., Inc., No. 05-12-01556-CV

By local ordinance, the City of Plano permits the owner of a billboard that pre-existed the city’s current territorial limits to repair the sign if it becomes “dilapidated and deteriorated.” The owners of one such sign near Highway 75 sued the city after their request to repair the sign after the sign and all but one of its five supporting beams were blown over in a storm. The city refused, arguing that the sign was “destroyed,” not dilapidated and deteriorated. The Court of Appeals disagreed, noting that the ordinance did not contain the word “destroyed,” and that its definition of “dilapidated and deteriorated” included broken support members. The Court ruled against the sign owners on their temporary regulatory taking claim, however, citing recent Texas Supreme Court authority that the pendency of a civil-enforcement procedure, by itself, does not give rise to a taking.

CPM Trust v. City of Plano, No. 05-14-00104-CV

Mike Jabary obtained a commercial certificate of occupancy for a restaurant in Allen, Texas.  As it turns out, Mr. Jabary opened a hookah bar instead of a restaurant.  Consequently, the City of Allen revoked his certificate of occupancy.

Mr. Jabary sued the City, alleging both private and public takings.  The City filed a motion for summary judgment on the ground that, because Mr. Jabary had not exhausted his administrative remedies by filing an appeal with the City, his claim was not ripe.  The trial court granted the City’s MSJ, and Mr. Jabary appealed.  On appeal, the Court of Appeals affirmed the trial court’s decision, rejecting Mr. Jabary’s argument that appealing to the city would be futile.

Jabary v. City of Allen

The Court of Appeals has issued its first-ever (so far as 600 Commerce is aware) decision in a case with its own Wikipedia page. The City of Carrolton annexed a portion of a privately owned airfield, then issued a new ordinance to regulate it. The city then ordered the airport to be closed based on violations of the ordinance, which led the nearby homeowners to sue the city in an attempt to invalidate the ordinance and the closure order, plus an additional lawsuit against the owners of the airport for failing to bring it into compliance with the ordinance. The homeowners prevailed on both summary judgment and in a jury trial, and the Court of Appeals largely affirmed, albeit on a modified basis.

Among other things, the Court’s 48-page opinion held that the ordinance was not a valid exercise of the city’s police power because it did not require notice to the homeowners whose easements burdened the airport property, thereby depriving them of due process. The ordinance was also determined to be unconstitutionally vague, as its use of the term “owner” was ambiguous and its reference to TXDOT’s Model Rules and Regulations did not provide sufficient guidance to tell the “owner” of the airport how it should be operated. The owners of the airport also could not escape judgment on the jury’s verdict merely because the judge retired after the trial and his successor issued the final judgment, nor were they successful in their attempt to inject the Noer-Pennington antitrust doctrine into breach of contract and fiduciary duty claims. The Court remanded the case to the district court for consideration of additional issues based on the Court’s modifications of the trial court’s rulings.

Noell v. City of Carrolton, No. 05-11-01377-CV

The DFW Airport Board sought to incentivize taxicabs powered by natural gas by giving them “head of the line” privileges at DFW.  In 2009, the Airport Board passed a resolution to that effect, and the Association of Taxicab Operators (the “Association”) brought suit, seeking a declaration that the resolution was void.  The trial court ultimately sided with the Association and declared the resolution as passed void.  The Airport Board did not appeal that ruling.

Instead, in 2012, the Airport Board passed a second, similar resolution, which gave “head of the line” privileges to “taxicab operators who invest in a CNG operated taxicab.”   Once again, the Association challenged the resolution, and again the trial court declared the resolution void.  This time, the Airport Board appealed.  The Court of Appeals reversed the trial court’s ruling, holding that the Airport Board has the exclusive power to operate DFW Airport, which includes the power to manage the flow of ground transportation.  The Court also rejected the Association’s argument that the trial court’s ruling on the first resolution was binding in this case under the doctrine of collateral estoppel.  Because the court’s ruling on the first resolution only applied to that resolution as passed, it did not determine whether the second resolution was valid.

DFW Airport Bd. v. Ass’n of Taxicap Ops., No. 05-12-00777-CV

The court reversed a judgment in favor the Texas Historical Commission and the City of Dallas related to demolition of a historical building and rendered a take nothing judgment for TWE. In March 2006, the City granted TWE a permit to demolish an historical Railway freight station in the West End of Dallas. The City later determined that the permit was improperly issued and revoked it. The City contended that they told TWE of the revocation and placed notice at the property. TWE proceeded with demolition. The City and THC sued TWE under the Local Government Code for demolishing a historic building without proper municipal approval and for fraud. The jury found against TWE on all claims, but the trial court granted TWE’s motion to disregard, in part, and awarded only civil penalties and damages under the Government Code.

The Government Code provides a cause of action for a city against someone who adversely affects a historic structure, but only if the City has already filed a verified listing of historic structures with the county clerk. The Code goes on to provide a cause of action for the THC if the city fails to pursue the cause of action under that same section. On appeal, the court held that the THC’s cause of action also required that the City file the required listing, which was not done, and therefore the THC’s action failed. Also, the statutes under which the City sought civil penalties did not specifically provide civil penalties. One allowed the City to adopt such penalties, which it never did, and the second addressed the enforcement of health and safety ordinance, not historical structure zoning. Thus, the trial court erred by assessing penalties against TWE.

TWE v. City of Dallas and Texas Historical Commission, No. 05-11-00582-CV