Third Court of Appeals Civil Update

The following are summaries of selected civil opinions issued by the Third Court of Appeals during May 2023. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of June 5, 2023.

ADMINISTRATIVE LAW: Court reverses judgment on immunity grounds.

Texas Educ. Agency v. Devereux Tex. League City, No. 03-2200172-CV (Tex. App.—Austin May 10, 2023, no pet. h.) (mem. op.).

Devereux operated a nonpublic residential-placement facility for disabled students. After an investigation, TEA revoked Devereux’s approval for contracting. Devereux sued, claiming a violation of its due-process rights. The trial court denied TEA’s plea to the jurisdiction. The court of appeals noted that immunity bars only viable causes of action. The court rejected Devereux’s argument that it had a vested interest in TEA approval. A constitutionally protected property interest requires a legitimate claim of entitlement, not a mere unilateral expectation. The statute gives no right to approval. Thus, TEA’s immunity was not waived. The court also rejected Devereux’s ultra-vires claims. Commissioner has broad authority to approve, deny, or revoke a nonpublic residential-placement contract. Thus, official’s immunity was not waived. The court reversed and dismissed.

TRIAL PROCEDURE: Court rejects application of virtual representation doctrine.

Brown v. Freed, No. 03-21-005560CV (Tex. App.—Austin May 10, 2023, no pet. h.) (mem. op.).

Tenants sued landlords for failing to return their security deposit. After the trial court announced its ruling for tenants, but before signing the judgment, landlords’ property manager sought to intervene. The trial court denied the motion and manager appealed. Manager contended he had standing under the doctrine of virtual representation. The doctrine requires a nonparty to establish that he is bound by the judgment, is in privity of estate with a party, and has an identity of interest with a party. Manager contended he was bound by the judgment because, as landlords’ agent, he is potentially liable for landlords’ liability to tenants. The court of appeals concluded that manager and landlords were not adversaries at trial, a necessary element of collateral estoppel. Because landlords did not sue manager as a third-party defendant, landlords would have to independently show manager wrongfully withheld tenant’s security deposit in a subsequent suit. The court dismissed. AL

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board-certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.