General Practice, Solo and Small Firm Section of the State Bar of Texas


                                                                                                                       SPRING 2020




Town of Shady Shores v. Swanson, 590 S.W.3d 544 (Tex. 2019)


Texas Open Meetings Act – Declaratory Judgments Act – Limits on Waivers of Immunity: The suit arose from an employment dispute between the town of Shady Shores and its former town secretary. Swanson, the town secretary, filed a claim for a declaratory judgment that the termination of her employment violated the Open Meetings Act. The Second Court of Appeals determined that Swanson did not assert a separate, standalone claim under the Texas Open Meetings Act; rather, she asserted only “grounds for declaratory relief based on” violations of the Open Meetings Act. The court of appeals recognized that the Declaratory Judgments Act does not provide a general waiver of immunity, but held that the Open Meetings Act provides an independent waiver for “some of what Swanson seeks under the” Declaratory Judgments Act.” Thus, the court of appeals found that the Open Meetings Act waiver of immunity extended to a suit under the Declaratory Judgments Act. The decision was contrary to a recent opinion from the Third Court of Appeals, which held that the Open Meetings Act does not waive immunity for declaratory relief. See City of New Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163, 172-73 (Tex. App. – Austin 2017, pet. pending). Held: Reversed and remanded. The Supreme Court held that the Open Meetings Act does not waive governmental immunity from suit for Declaratory Judgments Act claims as a matter of law. However, because Swanson also asserted that she pled claims under the Open Meetings Act (not just claims for declaratory relief as determined by the court of appeals) seeking mandamus and injunctive relief, and because the court of appeals did not address this issue, the Supreme Court remanded the case to the court of appeals for further proceedings “consistent with this opinion.” In its opinion, the Supreme Court found that, where Swanson alleged several violations of the Open Meetings Act in her amended petition,” and asked for relief provided by the Act, “[w]hether Swanson’s petition was perfectly clear is immaterial so long as it gave the Town ‘fair notice of the claim involved.’”


Texas Department of Criminal Justice v. Rangel, 2020 W.L. 596876; Lexis 65 (Tex. 2020)


Texas Tort Claims Act – Use of Tangible Personal Property – Statutory Exclusions and Exceptions to Liability: A prison inmate brought suit against a prison guard and the Texas Department of Criminal Justice for injuries he sustained when the guard used tear gas to disburse inmates who were threatening to fight and refused to return to their bunks. The trial court and the court of appeals both found that, because the state used tear gas – tangible personal property – by authorizing and instructing the prison guard to use for a given purpose, the Tort Claims Act waived the state’s immunity. Held: Reversed. The Supreme Court examined the “exclusions and exceptions” provisions of the Tort Claims Act (Texas Civil Practice & Remedies Code Sections 101.051 - .067) to find that liability was excepted as a matter of law because the riot exception in Section 101.057(1) applied.

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