City of San Antonio v

GOVERNMENTAL ENTITIES

FALL 2009

City of San Antonio v. Pollock, WL 1165317; LEXIS 251 (Tex. 2009)

Governmental Function - Nuisance - Taking: Homeowners brought negligence, nuisance, and takings claims against the City, alleging that migrating benzene from a closed municipal landfill reduced the value of their property. When the government maintained a public nuisance that it knew was substantially certain to cause a specific injury to private property, it may be required by article I, § 17 of the Texas Constitution to provide adequate compensation for taking or damaging the property. The claim in this case was that benzene from a closed municipal waste disposal site migrated through the soil to a nearby home, reducing its value and causing the owners' minor daughter to contract leukemia. After a jury trial, the trial court awarded over $19 million in damages. The Court of Appeals reversed the punitive damages, but otherwise upheld the trial court judgment. Held: First, because garbage collection was a governmental function, there must be a specific waiver of governmental immunity to pursue a negligence claim. In this case, there was no waiver of liability in the Tort Claims Act. Second, because there was no evidence the City knew its actions were substantially certain to cause the asserted injuries or that the personal injuries were caused by exposure to benzene, the homeowners could not show a compensable governmental taking. Accordingly, the Supreme Court reversed the judgment of the court of appeals and rendered judgment for the City. The Court opinion contained an important discussion relative to expert opinions, which were not relevant to governmental entities alone, but which make unobjected to attacks on expert opinions viable on appeal. With respect to the nuisance and takings claims, the Supreme Court reiterated that the government's “mere negligence which eventually contributes to the destruction of property is not a taking”; rather, the government must act intentionally. This requirement was rooted in the constitutional provision that a compensable taking occurred “only if property is damaged or appropriated for or applied to public use.” An accidental destruction of property did not benefit the public. The public-use limitation “is the factor which distinguishes a negligence action from one under the constitution for destruction.” For purposes of article I, § 17, a governmental entity acted intentionally if it knew either “that a specific act [was] causing identifiable harm” or “that the specific property damage [was] substantially certain to result from” the act. A governmental entity was substantially certain that its actions would damage property only when the damage was “necessarily an incident to, or necessarily a consequential result of the [entity's] action.” The government's knowledge must be determined as of the time it acted, not with benefit of hindsight. The governmental entity's awareness of the mere possibility of damage was no evidence of intent. The damage the homeowners’ claim -- the migration of gas onto their property -- was neither necessarily incident to or a consequential result of the operation of a landfill. It can be prevented. The City's negligent failure to prevent landfill gas migration in this case was no evidence that it intended to damage the homeowners’ property. Since there was no evidence of a compensable taking, the City was immune from the homeowners’ property damage claims.

The City of El Paso v. Heinrich, WL 1165306; LEXIS 253 (Tex. 2009)

Governmental Immunity - Injunctive relief against state actors: A recipient of city government pension benefits sued the board members and the mayor, alleging that her benefits had been improperly reduced contrary to state law. Held: “While governmental immunity generally bars suits for retrospective monetary relief, it does not preclude prospective injunctive remedies in official-capacity suits against government actors who violate statutory or constitutional provisions.” The Court affirmed in part (because the officials sued in their official capacities did not have immunity), reversed in part (because the governmental entities did have immunity and because the court of appeals had been mistaken about the capacity in which the individual defendants were sued), and remanded to the trial court. The Court first emphasized that suits for prospective relief must indeed be brought against state officials, not against state entities. That is because of the “acts of officials which are not lawfully authorized are not acts of the State.” The Court recognized that, “for all practical purposes,” these types of suits were against the State. But the Court nonetheless followed the traditional rule that had been applied in the federal context and in some state cases. Accordingly, the Court affirmed the dismissal of the governmental entity defendants; they retained immunity against this action.

The Court next addressed the question of what remedy could be available in one of these ultra vires suits against state officials. It concluded that the best way to resolve this conflict was to follow the rule that a claimant who successfully proved an ultra vires claim was entitled to prospective injunctive relief, as measured from the date of injunction. Thus, while the ultra vires rule remained the law, a retrospective remedy did not. Retrospective injunctive relief was, as the Court pointed out, often just damages by another name. But prospective injunctive relief, “as measured from the date of the injunction”, was instead a proper attempt to bring government officials back into line. Because these types of suits required that government officials be named as defendants, they also force courts to sort out whether each named official has been sued in an “official capacity” or an “individual capacity.” An “official capacity” suit asked the official to take some action within the scope of their official powers; an “individual capacity” suit sought monetary recovery from the individual. Note: Include the proper officials as defendants and specify the capacity in which the defendants are sued to avoid immunity claims on prospective relief claims.

Barr v. City of Sinton, WL 1712978; LEXIS 396 (Tex. 2009)

Zoning - Texas Religious Freedom Act: A pastor who, as part of religious ministry, offered a “halfway house” ministry out of two houses he owned, and the nonprofit that pastor directed for such purposes, brought action against city seeking, among other relief, a declaratory judgment that a city ordinance prohibiting the location of correctional rehabilitation facilities in defined areas was unconstitutional and a violation of the Texas Religious Freedom Restoration Act (TRFRA). After a bifurcated bench trial, the district court entered judgment that the city had not violated the TRFRA. The Court of Appeals affirmed. Pastor and nonprofit petitioned for review. Held: Reversed and remanded. (1) the strict scrutiny test of TRFRA applied to zoning ordinances; (2) the halfway house ministry was “substantially motivated by sincere religious belief” under TRFRA; (3) the ordinance “substantially burdened” the right to free religious exercise, as defined by TRFRA; (4) the city lacked a “compelling interest,” thus violating TRFRA; and (5) even if it had a compelling interest, the city did not employ the least restrictive means. The case was remanded to the district court for consideration of appropriate injunctive relief, damages, and attorney’s fees.

Denton County v. Beynon, 283 S.W.3d 329 (Tex. 2009)

Tort Claims Act - Special Defect: A passenger in a vehicle forced off the roadway by another vehicle brought action against the county to recover for injuries sustained upon collision with a floodgate arm, which was unsecured and improperly pointed toward oncoming traffic. The district court denied the county's plea to the jurisdiction. The court of appeals affirmed. Held: The Supreme Court reversed and dismissed the case, holding (1) there was no requirement that a condition pose an unexpected and unusual danger to constitute a special defect, abrogating State v. Rodriguez, 985 S.W.2d 83 (Tex. 1999); (2) a condition's unexpectedness was not sufficient to establish existence of a special defect; and (3) the floodgate arm, located three feet from the edge of rural county road, was not a special defect within meaning of Texas Tort Claims Act (TTCA).