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


                                                                                                                              FALL 2018



Harris County, Texas v. Annab, 2018 W.L. 2168484; LEXIS 402 (Tex. 2018)


Tort Claims Act – “Use” of Tangible Personal Property: An off-duty deputy constable shot plaintiff in a fit of road rage. In committing “this vicious crime,” the deputy constable fired his personal firearm from his personal vehicle. The deputy constable is now serving a twenty-year sentence in prison for the crime. Attempting to trigger the Texas Tort Claims Act’s limited waiver of governmental immunity, the plaintiff alleged that the County’s use of tangible property caused the injuries she suffered when the deputy constable shot her. The alleged use of tangible personal property was the county’s decision to hire the deputy constable, and its repeated authorization of him to have, possess, and use his personal firearm as his duty weapon. The County filed a plea to the jurisdiction, arguing that (1) the plaintiff’s claims were excluded from the Tort Claims Act’s immunity waiver because they arose from the deputy constable’s intentional assault, (2) the use or misuse of information was not the “use of tangible personal property” under the Tort Claims Act, and (3) the deputy constable did not act within the scope of his employment, so “[n]o county property was used.” The trial court granted the plea, which was affirmed by the court of appeals. The court of appeals remanded the case to the trial court to allow the plaintiff to replead and conduct discovery. Held: Affirmed in part, reversed in part, and judgment rendered. The Supreme Court held that the plaintiff did not establish a waiver of governmental immunity because her allegations, taken as true, did not demonstrate that the County’s use of tangible property caused her injuries. The case contains a comprehensive review of Supreme Court authorities which caused it to determine that there was no waiver immunity under the Texas Tort Claims Act.


Wasson Interests, Ltd. v. City of Jacksonville, 2018 W.L. 2449184; LEXIS 514 (Tex. 2018)


Sovereign Immunity – Breach of Contract Claim – Propriety Acts: This case was before the Supreme Court for the second time. As it explained the first time, it has long held that “a municipality is not immune from suit for torts committed in the performance of propriety functions, as it is for torts committed in the performance of its governmental functions.” Wasson Interest, Ltd. v. City of Jacksonville (Wasson I), 489 S.W.3d 427, 430 (Tex. 2016). And, as a matter of first impression, the Supreme Court held in Wasson I that the governmental/proprietary dichotomy “applies in the contract-claims context just as it does in the tort-claims context.” Id. at 439. The issue in this appeal was whether the contract claim arose from the municipality’s performance of a governmental or proprietary function. Held: In holding that the contract arose from the municipality’s performance of a proprietary function, so governmental immunity did not apply, the Supreme Court held that, to determine whether governmental immunity applies to a breach of contract claim, the proper inquiry is whether the municipality was engaged in a governmental or proprietary function when it entered the contract, not when it allegedly breached the contract. Stated otherwise, the focus belongs on the nature of the contract, not the nature of the breach. If a municipality contracts in its proprietary capacity but later breaches the contract for governmental reasons, immunity does not apply.       Conversely, if a municipality contracts in its governmental capacity but breaches that contract for proprietary reasons, immunity applies.


City of Laredo v. Laredo Merchants Association, 2018 W.L. 3078112; LEXIS 647 (Tex. 2018)


Statutory Preemption of Ordinances: Association brought action against home-rule city, seeking a declaratory judgment that an ordinance making it unlawful for commercial establishments to provide single-use plastic or paper checkout bags to customers was unenforceable. The trial court upheld the ordinance, but a divided court of appeals reversed, holding that the ordinance was preempted by the Texas Solid Waste Disposal Act (“the Act”). Held: affirmed. The Supreme Court began its review by noting that the Texas Constitution states that city ordinances cannot conflict with state law. Because the Act provided that “[a] local government . . . may not adopt an ordinance . . . to . . . prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law,” its limitations on local control encompassed the ordinance in question. Thus, the ordinance was preempted by the statute.







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