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City did not act in bad faith under PIA in cost estimate calculation; City established it produced all records discovered

Mark Rines v. City of Carrollton 05-15-01321-CV (Tex. App—Dallas, February 13, 2018)

This is a Texas Public Information Act (“PIA”) case where the Dallas Court of Appeals affirmed the trial courts order dismissing the Requestor’s lawsuit. [Comment: this case is a rare one which also deals with cost estimates and allegations of overcharging.]

Rines, the Requestor, filed a PIA request for the civil service files of fourteen specified police officers. The City requested an Attorney General (“AG”) opinion for some documents, and issued a cost estimate letter for the remainder. After production of the uncontested documents, the City refunded some of the costs paid bythe Requestor. After receipt of the AG opinions, Rines filed suit asserting the City acted in bad faith in providing a cost estimate letter and that the City did not comply with his request. The City filed a plea to the jurisdiction which included an evidentiary hearing with testimony. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Rines appealed.

The City’s testimony included how specific City employees conducted searches for records and the results. The City established it produce all records it located which were not contested under the AG opinion request. Rines asserts documents still exist and are missing which must be produced. He also objected to the testimony of record officials who did not have personal knowledge of the records being searched. However, the testimony established the record retention individuals’ job duties entailed custodial functions of the records. Further, Rine’s objection during the hearing was not ruled upon, so provides the appeals court nothing to review. In general, the City’s jurisdictional evidence demonstrates it searched for the requested information, officially requested responsive documents from relevant individuals, and produced to appellant all responsive information it was able to locate and obtain. Rines produced no evidence as to what was missing or that it was within the City’s records. The City conclusively established it complied with release under the Act.  Rines further did not provide evidence the City’s initial computation for the cost estimate was inaccurate based on the information available at the time. He provided no evidence of how the computation occurred and what was considered. After release, the City refunded monies based on the actual numbers released, but such factored in the non-release of information discovered but subject to the AG opinion.  Nothing indicates the City did not act in good faith in its initial calculation. Simply because the end cost is different does not equate to bad faith.

If you would like to read this opinion click here. Panel consists of Justices Lang, Brown and Whitehill. Justice Lang delivered the opinion of the court. Mark Rines appeared pro se. The attorneys listed for the City are Darrell G-M Noga and Christopher Klement.

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U.S. 5th Circuit remands excessive force case holding fact question exists as to whether suspect who died during arrest was resisting or not

Darden v. City of Fort Worth, 16-11244, — F3d. –, 2018 WL 525640 (5th Circ. January 24, 2018)

This is a §1983/excessive force/ wrongful death case where the U.S. 5th Circuit Court of Appeals reversed a trial court order granting the officers’ and City’ summary judgment.

Fort Worth Police Officers W.F. Snow and Javier Romero arrested Darden, a black man who was obese, using a no-knock warrant. Darden’s estate asserts during the arrest the officers assaulted him including taseing him twice, choking him, and punched and kicked him. According to witnesses for the plaintiff, Darden “had no time to react” before “[h]e was thrown on the ground” by the officers. Witnesses testified that Darden never made any threatening gestures and did not resist arrest. The officers assert he did resist arrest requiring the force used.  Darden suffered a heart attack and died during the arrest. The court noted video footage of certain parts of the arrest were contained within the record.  Darden’s estate filed suit against the officers, individually, and the City. The district court granted summary judgment in favor of the officers and the City and dismissed all claims. Darden appeals.

Officers Snow and Romero asserted qualified immunity. The investigating physician determined the force used and taser were contributing factors but Darden suffered from a coronary arty disease. The 5th Circuit first determined the trial court errored in finding Darden’s estate did not establish the death was caused solely by the use of force. A tortfeasor takes his victim as he finds him. Darden’s preexisting medical conditions increased his risk of death during a struggle, and in that way, they contributed to his death. The evidence suggests that Darden would not have suffered a heart attack and died if the officers had not tased him, forced him onto his stomach, and applied pressure to his back. There is a genuine factual dispute over whether Darden posed an immediate safety threat to the officers.  The warrant was issued because probable cause exists the house occupants were dealing drugs, which is a serious offense, although not a violent one in and of itself. While the video shows Darden apparently surrendering, there are gaps. the circumstances and whether he was resisting cannot be determined from the record. The court was careful to point out that a jury may ultimately conclude that Darden did not comply with the officers’ commands and was actively resisting arrest.  However, for summary judgment purposes, the facts are in dispute and granting the officer’s motions was improper. The court provided a good breakdown of the types of force which are permitted in analyzing the existence of disputed facts. Finally, the court held the trial court did not analyze the claims against the City because it had already (inaccurately) determined the officers were not liable. The trial court needs to re-examine the summary judgment arguments as to the City.  The 5th Circuit remanded the case for further proceedings.

If you would like to read this opinion click here. Panel consists of Justice King, Prado and Southwick. Justice Prado delivered the opinion of the court. The attorney listed for Darden is Matthew J. Kita. The attorneys listed for the City are Laetitia Coleman Brown, Kenneth E. East, and Dee Lee Thomas, Jr.

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Home-rule city’s franchise contract and right-of-way ordinance trumps pro-forma provision in a tariff, so utility must bear costs of relocation

City of Richardson v Oncor Electric Delivery Company, LLC, 15-1008 (Tex. February 2, 2018)

This case involves a dispute between a city and a utility over who must pay relocation costs to accommodate changes to public rights-of-way.

The City of Richardson (“City”) negotiated a franchise agreement with Oncor Electric Delivery Company LLC, (“Oncor”)  requiring Oncor to bear the costs of relocating its equipment and facilities to accommodate changes to public rights-of-way. Richardson later approved the widening of thirty-two public alleys. Oncor refused to pay for the relocation. While the relocation dispute was pending, Oncor filed an unrelated case with the Public Utility Commission (PUC), seeking to alter its rates. That dispute was resolved by settlement, but the settlement included Richardson passing a tariff ordinance. The Court had to decide whether a pro-forma provision in a tariff, which sets the rates and terms for a utility’s relationship with its retail customers, trumps a prior franchise agreement, which reflects the common law rule requiring utilities to pay public right-of-way relocation costs.

By nature, a franchise agreement represents the unique conditions a city requires of a utility in exchange for the utility’s right to operate within the city. Here, the Franchise Contract incorporated a conventional right-of-way ordinance (the “ROW Ordinance”) requiring the utility, upon written notice from Richardson, to remove or relocate “at its own expense” any facilities placed in public rights-of-way. The ROW Ordinance is typical of others throughout Texas. “Tariff” is defined as “the schedule of a utility . . . containing all rates and charges stated separately by type of service, the rules and regulations of the utility, and any contracts that affect rates, charges, terms or conditions of service.” 16 Tex. Admin. Code §25.5(131). A tariff filed with the PUC governs a utility’s relationship with its customers, and it is given the force and effect of law until suspended or set aside. However, the PUC’s rules also contain a “pro-forma tariff,” the provisions of which must be incorporated exactly as written into each utility’s tariff.  The City and Oncor sued each other over payment of the relocation costs, each citing the differences between the ROW Ordinance/Franchise Contract and pro-forma tariff. The trial court granted the City’s motion for summary judgment, but the court of appeals reversed and rendered judgment for Oncor.

Under the common law, a utility’s right to use a city’s public rights-of-way is permissive and is subordinate to the public use of such rights-of-way. The Texas Supreme Court has traced this principal back at least as far as 1913.  The Utilities Code mirrors the common law, but specifically apply to “streets.”   Oncor argues that the Legislature’s use of “street” and not “alley” is significant and precludes these statutes from applying to alleys. Under statutory construction principles, every word included and excluded by the Legislature has significance. Looking to the statutory scheme, the Court found particularly relevant the Legislature’s recognition of the broad authority afforded to home-rule cities. As a home-rule city, Richardson has “exclusive original jurisdiction over the rates, operations, and services of an electric utility in areas in the municipality.” Furthermore, the Court held that in the context of home-rule cities, the recognition of a specific power does not imply that the other powers are forbidden. The  Legislature did not intended to strip municipalities of their common law right to require utilities to bear relocation costs. The language in the Tariff does not unmistakably address the relocation costs. The Tariff addresses Oncor’s relationship with end-users, which, in this case, dose not include the City.  As a result, the City retains the power to address costs through its ROW Ordinance and its Franchise Contract. The Court reversed the judgment of the court of appeals and reinstated the judgment of the trial court.

If you would like to read this opinion click here. Justice Green delivered the opinion of the Court. The docket page with attorney information can be found here.

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Failure to drive school bus to hospital instead of waiting for ambulance to assists non-responsive child is a non-use of property, which does not waive immunity says Beaumont Court of Appeals.

Nathan Delameter et. al, v. Beaumont Independent School District (Tex. App — Beaumont, February 1, 2017)

This is a wrongful death/Texas Tort Claims Act case where the Beaumont Court of Appeals affirmed the granting of the school district’s plea to the jurisdiction.

A disabled/wheelchair bound child was receiving therapy while attending school in the Beaumont Independent School District (“BISD”). The bus BISD used to pick up the child had both a driver and an attendant. After his chair was placed on the bus, it was locked in place. The duties of the District’s employees required them to lift the chair onto the bus, to lock the chair in place, and to monitor the child’s condition on the way to school. During transport the child became unresponsive. The driver and attendant stopped the bus and called BISD headquarters. They did not drive the bus to any emergency room, but awaited the arrival of an ambulance consistent with District policies.  Unfortunately, the child died. The family brought suit against BISD asserting the bus was driven in a negligent manner causing the child to become nonresponsive. The District filed a plea to the jurisdiction, which was granted. The family appealed.

According to the Delameters, the bus’s movement eventually caused the restraints to tighten around the child causing him to lose consciousness. The Delameters also argued that stopping the school bus and waiting for an ambulance when the driver could have made it to a nearby hospital involved the use or the operation of the bus. However, after analyzing the evidence submitted, the court held nothing indicated the driver drove the bus at an unsafe speed or that he engaged in any unsafe maneuvers. Even though the Plaintiff’s evidence suggests that the child’s harness may have required adjustment, this statement amounts to no evidence to show that the harness injured or caused his death. Further, the failure to drive the bus to the hospital is a non-use of property, which does not waive immunity. As a result, the plea was property granted.

If you would like to read this opinion click here.  Panel consists of Chief Justice Kreger, Justice Horton and Justice Johnson. Memorandum Opinion by Chief Justice Horton. The attorneys listed for the Beaumont Independent School District are Frances Broussard and Christopher B. Gilbert. The attorneys listed for the Delameters are Cody A. Dishon and Paul F. Ferguson II.

 

 

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Under PIA, school could reasonably anticipate litigation even though it was given only a “conditional” threat of suit

Appellant, B. W. B.// Cross-Appellant, Eanes Independent School District v. Appellee, Eanes Independent School District// Cross-Appellee, B. W. B03-16-00710-CV (Tex. App — Austin, January 10, 2018)

This is a Public Information Act (“PIA”) and mandamus action where the Austin Court of Appeals affirmed the order granting in part the school’s motion for summary judgment but denying its plea to the jurisdiction.  BWD’s daughter attended Eanes Independent School District (“EISD”) and was on the soccer team. BWD alleges the coach bullied his daughter and released her private information, thereby violating FERPA, HIPPA, and EISD’s Acceptable Use Guidelines for Technology.  He requested records related to Coach Rebe from EISD. The school sought an AG opinion regarding certain documents.  However, federal regulations do not allow the AG to review certain documents pertaining to student records. The AG deferred to the EISD to determine student record applicability.  The AG then determining the remining records were excepted under the litigation exception of the PIA since BWD had threatened formal complaints under the administrative process against the coach. BWD filed suit to compel the disclosure of the records. The trial court denied EISD’s plea to the jurisdiction but granted, in part, EISD’s summary judgment motion.

The court first held, contrary to EISD’s arguments in its plea, requestors are permitted to sue for mandamus to challenge an AG opinion regarding the release of information. They are not required to accept the AG’s determination of any exceptions. Therefore, the trial court has jurisdiction over this suit. FERPA (the federal statute on school privacy issues) establishes BWD has no standing to challenge EISD’s determination of what is a student record and what is not. Under FERPA a parent has a right to examine those records, and this right trumps the PIA’s litigation exception. Unfortunately, FERPA creates no private right of action. BWD’s course of action is to file a complaint with the federal Department of Education for the right to inspect the records.

For what remains, in order to fall within the litigation exception, the school must have reasonably anticipated litigation at the time of the records request and the withheld information must relate to the anticipated litigation. An isolated threat over the telephone, without more, does not trigger “reasonably anticipated litigation” for an entity. However, when a genuine dispute exists involving the entity, at least one threat of litigation has been presented, and the entity receives communication from an attorney, an entity may reasonably anticipate litigation. Here, BWD sent an email to Coach Rebe and carbon copied four other EISD email addresses addressing the dispute. His attorney contacted the school and stated they intend to file a formal administrative complaint, but they would not file suit if the coach had no further contact with the student. A “conditional” threat of litigation, matched with the other case specific facts, established EISD could reasonably anticipate litigation in order to assert the exception. The documents at issue in this case relate directly to the dispute and the coach. As a result, they can be withheld.

If you would like to read the opinion click here. Panel consists of Chief Justice Rose, Justice Field and Justice Bourland.  Memorandum opinion by Justice Field. The attorneys listed for B.B.W is Brian W. Bishop John J. Hightower. The attorneys listed for the Eanes Independent School District are Jonathan G. Brush and Dylan Farmer.

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Supervisor’s directive that employee “snitch” on anything going wrong is not “criminal activity” under the Texas Whistleblower Act

Metropolitan Transit Authority of Harris County, Texas v. Ronald Williams 01-17-00724-CV (Tex. App—Houston, January 25, 2018)

This is a Texas Whistleblower Act suit where the First District Court of Appeals in Houston reversed the denial of the employer’s plea to the jurisdiction and rendered judgment for the Metro Authority.

Williams was a track maintainer for Metro. Williams complained to Metro’s compliance officer asserting a hostile work environment by his supervisor, Ratcliff.  Williams alleged Ratcliff instructed him to “snitch” on anyone or anything going wrong on the track and that when Williams expressed reservations Ratcliff became hostile. Later a incident occurred between Williams and another Metro employee, Fred Burton. Burton reported the incident to the Metro police the next day. Burton asserted Williams began to curse at him, calling him a derogatory name for a black person, and threatening to fight him off Metro property. Three other people were witnesses to the incident, including Ratcliff. Williams wrote a response to the incident but asserts Burton’s accusations were retaliation for Williams’ complaint against Ratcliff. Police charged Williams with assault by threat and Metro terminated Williams. On an aside, after Williams was terminated, another employee reported Ratcliff and Burton for theft of Metro property and Williams cooperated with the investigation.  Williams filed suit under the Texas Whistleblower Act. Metro filed a plea to the jurisdiction which the trial court denied. Metro appealed.

“Snitch” means to report on someone else. Williams’ attempt to change the meaning is unsupported in the text of his report. In the context of the entire passage, Ratcliff asking Williams to be his eyes and ears on the track conveys the idea that Williams would watch what other people were doing and report to Ratcliff. Nothing in this passage indicates that Ratcliff was engaged in any criminal activity and seeking Williams’s help in the process.  Simply because Williams was later charged with a crime by another employee does not mean Williams was retaliated against  for his report to the compliance officer. Metro produced evidence that another employee reported the criminal acts of Ratcliff and Burton after Williams was fired. Metro’s evidence established that an officer was assigned to investigate the allegations and that the first time the officer spoke to Williams was after he had been terminated. Metro could, therefore, not retaliate against him because of anything he provided the officer.

If you would like to read the opinion click here. Panel consists of Chief Justice Radack, Justice Higley, Justice Bland. Memorandum opinion by Justice Valdez. The attorney listed for Ronald Williams is Todd Webb. The attorneys listed for Metropolitan Transit Authority of Harris County are Daniel Nicholas Ramirez and Hao Pham Le.

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Notice of water in alcove is not actual notice under TTCA of water in adjoining hallways says Fort Worth Court of Appeals

Tarrant County, Texas v. Margielene Carter-Jones 02-17-00177-CV (Tex. App– Fort Worth, January 25, 2018)

This is a premise defect/Texas Tort Claims Act (“TTCA”) case where the Fort Worth Court of Appeals reversed the denial of a plea to the jurisdiction and rendered judgment for the County.

Marks, a courthouse worker, noticed a puddle of water in front of a restroom, which is in an alcove separate from the hallway. The puddle was confined, was approximately two feet in diameter and was not expanding. She reported it to maintenance. About an hour later, Carter-Jones slipped and fell on water located in the hallway. Carter-Jones sued the County under a premise defect theory. The County filed a plea to the jurisdiction, which was denied. The County appealed.

Merely referring to the TTCA in a petition does not establish a waiver of immunity. Courts must consider the factual allegations and/or evidence. The court first noted Carter-Jones did not plead and therefore did not establish personal property was involved for waiver purposes. Carter-Jones and the County disagree about what the known “dangerous condition” in this case actually was under a premise defect theory. Carter-Jones asserts the water on the alcove floor that later spread to the hallway created an unreasonable risk of harm. The County asserts it must have known of the water in the hallway which caused the fall for a waiver to exist. The County’s evidence established that it did not have actual knowledge of the water in the hallway. Its evidence asserts the facilities-management department would have responded to a water leak or hazard in the corrections-center hallway more quickly than water in front of a closed bathroom in an alcove with no traffic. “Actual knowledge” requires knowing that “the dangerous condition existed at the time of the accident, as opposed to constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time.”  No evidence exists the County had actual knowledge water was in the hallway. While Carter-Jones  conclusory pleadings state the County had actual knowledge, the evidence established otherwise, with no contravention. As a result, the plea should have been granted.

If you would like to read the opinion click here. Panel consists of Chief Justice Sudderth, Justice Gabriel Justice Kerr. Memorandum opinion by Justice Kerr. The attorney listed for Tarrant County is David K. Hudson. The attorney listed for Carter-Jones is, Jennifer Kashar.

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Water District property entitled to tax exempt status even though District rents to private business on river front

Tarrant Appraisal District v. Tarrant Regional Water District 02-17-00042-CV (Tex. App— Fort Worth, January 25, 2018)

The Tarrant Appraisal District (“TAD”) asserted part of the property owned by the Tarrant Regional Water District (“TRWD”) was not “used for public purposes” and therefore was not tax exempt. The Fort Worth Court of Appeals affirmed the order dismissing TAD’s suit. [This is a 37 page opinion, but has excellent language on “public purpose” definitions applicable to governmental entities. Sorry, but long opinion equals long summary in comparison.]

TRWD acquired property in connection with a federal control project. Undertaken in concert with the United States Army Corps of Engineers, the program’s purpose was to control flooding on the Clear Fork Trinity River. A portion of the property was not used directly for flood control but was used for public trails, common areas, and river access. In an effort to counteract a lack of use outside of certain areas along the trails and “to encourage development of river-facing businesses on TRWD’s property and adjoining properties,” TRWD determined it would improve and lease to chef Tim Love’s River Shack, LLC to run a restaurant on the river front property. River Shack pays TRWD rent based on a percentage of its annual sales and “[a]ll income received by TRWD from the [lease] is deposited into the general fund of TRWD and used exclusively for [] TRWD’s public purposes.” TAD asserted the property was not exempt from taxation. TRWD followed the procedures in the Tax Code to challenge the decision, ending in district court. TRWD filed a motion for summary judgment which the trial court granted. TAD appealed.

TRWD is a governmental entity created under statute. TRWD is authorized to make and enforce reasonable rules that are necessary to accomplish TRWD’s “authorized purposes,” which include (i) regulating “all recreational and business privileges on any . . . body of land . . . owned . . . by the district,” (ii) promoting “state or local economic development,” and (iii) stimulating “business and commercial activity in the district.” TRWD is further permitted to provide for or participate in the acquisition, construction, development, operation, or maintenance of recreational facilities intended to promote economic development. TAD contends the Tax Code should control over the TRWD authorization statutes and applies only when public property is used exclusively for the use and benefit of the public.  TRWD asserts its creation is dictated by the Texas Constitution and it serves a public purpose as a matter of law. Interestingly, the court, after going through a detailed analysis of the Texas Constitution, statutory construction principles, and the Tax Code, held the Tax Code controls, but the property is exempt as a matter of law.

The court ends up holding unconstitutional, as a local law, a portion of the uncodified statute authorizing TRWD’s creation and authority. The result being the Tax Code controls for purposes of determining the exemption. Under §11.11(a) of the Texas Tax Code, a property is exempt from taxation if it is used for a public purpose. The court declined to adopt TAD’s interpretation that it must be used “exclusively” for public purposes with no simultaneous use benefiting an individual private business. The court compared other statutes and constitutional provisions where the legislature expressly inserted  “exclusive-use” language. TAD’s argument “has no basis in the text” of either the Tax Code or its constitutional counterpart for exclusivity. Whether property is used for public purposes is a highly fact-specific question that must be answered on a case-by-case basis. The court held “[c]ontrary to TAD’s overly-narrow characterization, the Property is not some run-of-the-mill strip mall that TRWD developed merely for retail purposes. River Shack no doubt operates a business for profit, but that is only one facet of a larger project that, at its core, unquestionably has a public purpose.” TRWD entered into the lease with River Shack “to encourage development of river-facing businesses on TRWD’s property and adjoining properties.” The property “was intended and designed as a trail amenity to provide the public with recreational enhancements ancillary to the public’s use of the Trinity Trails system.” Thus, the evidence conclusively demonstrates, TRWD leased the property to River Shack in connection with its optimistic plan to develop it for economic and recreational purposes. With its pavilion, common areas, and location adjacent to the Trinity Trails, and developed and leased for economic and recreational purposes, the property is used for public purposes as a matter of law.

If you would like to read the opinion click here. Panel consists of Chief Justice Walker, Justice Meier and  Justice Gabriel. Memorandum opinion by Justice Meier. The attorney listed for Tarrant Regional Water District is Steven K. Hayes. The attorneys listed for Tarrant Appraisal District of Harris is Catherine Jane Alder and Todd A. Clark.

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Trial Court could not properly issue TRO to enjoin city from considering annexation ordinance

In Re City of Pearland, 14-17-00921-CV (Tex. App. – Houston [14th Dist.], January 9, 2018)

The 14th Court of Appeals in Houston granted the City’s petition for mandamus compelling a trial court to lift its temporary restraining order issued in an annexation lawsuit.

Senate Bill 6, which requires a city to obtain consent by a majority of the property owners in an area before it can annex, went into effect December 1, 2017.  The City of Pearland attempted to annex an area prior to the effective date. On November 20, Plaintiffs filed their First Amended Petition, which alleged that the City, in the annexation process, had failed to comply with certain provisions of the Texas Open Meetings Act, amongst other things. Plaintiffs requested a temporary restraining order restraining the City from considering the annexation ordinance, which the trial court granted and set an injunction hearing for December 4, 2017. Pressed for time, the City filed a mandamus and request for emergency relief in the court of appeals.  The court issued an order for the trial court to remove the restraining order on November 27th , but filed this supplemental brief explaining its legal reasons.

Under section 551.142(a), a property owner, whose property has been annexed, has standing to challenge the validity of and enjoin an annexation ordinance based on violations of the Open Meetings Act.  Therefore, if the City did violate the Texas Open Meetings Act, the property owners have a legal remedy to challenge the annexation (after it occurs) for violations of the Act. The purpose of a TRO is to preserve the status quo. By restraining the City’s actions and setting a hearing after the deadline, the district court essentially had made a final, non-appealable adjudication affecting the City. That is not maintaining the status quo but issuing a ruling on the merits.

If you would like to read the opinion click here. Panel consists of Chief Justice Frost, Justice Busby and Justice Wise.  Memorandum Opinion Per Curiam. The attorneys listed for the City are John J. Hightower, Scott Bounds and Allison Poole. The attorneys listed for the property owners are Sayyed Omar Izfar, Scot Clinton and H. Fred Cook.

Dallas Court of Appeals holds ex-police officer failed to establish his termination was in retaliation for whistleblower report of “pronoun confusion” in PD assault report

Michael Hackbarth v. University of Texas at Dallas  05-16-01250-CV (Tex. App— Dallas, January 4, 2018)

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the trial court’s granting of the University’s motion for summary judgment.

Hackbarth was hired as a police officer for the University after retiring from the Dallas Police Department after 28 years of service. While on the force, a specific student at theno  University alleged her boyfriend, Rana, assaulted her. The investigator, MacKenzie, closed the case by allowing the complainant to sign a statement of non-prosecution, but instructed Rana to have no further contact with the complainant. MacKenzie issued an alert to officers to the escalating violence between the couple and that both had refused to prosecute. It advised officers to “take appropriate action” if they made contact and an offense had occurred.  Several months later Hackbarth along with Lt. Montgomery, were dispatched to a disturbance at the University library involving both students. Both denied any altercation.  When MacKenzie reviewed Hackbarth’s report he recognized the names. After consulting with the prosecutor, MacKenzie wanted an arrest for Rana, but Hackbarth insisted no violation occurred.  MacKenzie instructed Montgomery to draft an affidavit in support of an arrest warrant which Hackbarth disagreed with some of the wording. Hackbarth reported the incident to the Chief of Police. The Chief investigated and determined “pronoun confusion” caused an error in the report. Hackbarth complained to the DA and Texas Rangers. Rana later pleaded no contest to Class C assault in municipal court. The University’s assistant director over police performed a month-long investigation into the entire department and determined the complaints were unfounded. However, he listed several other performance failures, which launched an additional investigation. This second investigation revealed Hackbarth violated several department policies at different times and his supervisors relinquished their control over him due to his dominating behavior. MacKenzie was disciplined for failing to arrest Rana initially months before. Hackbarth was terminated along with his immediate supervisor, Brushwiller. After exhausting an appeal panel made up of law enforcement officers from other agencies, Hackbarth filed this whistleblower lawsuit. The trial court granted the University’s motion for summary judgment, which Hackbarth appealed.

When determining whether an agency expresses a negative attitude toward a whistleblower report, courts focus on the words and conduct of the final decision-makers who ultimately approved of the adverse employment action. The assistant director of police at the University made no recommendation or even opinion as to discipline or action to the Chief. It was the assistant director, on his own, who initiated the second investigation with no direction from the Chief or University PD. In determining whether an agency engaged in retaliatory conduct, the plaintiff may present evidence the agency treated a similarly-situated employee differently than it did the plaintiff.  The two examples offered by Hackbarth of comparators (who were progressively disciplined for other infractions) were not true comparators. The assistant director never determined either of these two comparing officers conducted investigations that were “inadequate, and completely devoid of any customary police investigatory procedures” or had the attitude problems attributable to Hackbarth. Brushwiller was also terminated, but made no whistleblower reports.  No evidence presented creates a fact issue to any of these comparative facts. As a result, the trial court properly granted the summary judgment.

If you would like to read this opinion click here.  Panel consists of Chief Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Chief Justice Francis. The attorneys listed for Hackbarth are David K. Watsky and Bob Gorsky. The Attorney listed for the University Of Texas At Dallas is Andrew Harris.