Amicus Brief Status
TML/TCAA LEGAL DEFENSE PROGRAM AMICUS BRIEF UPDATE
(Includes Briefs Filed Through October 10, 2007)
PENDING
Utility Relocation: Southwestern Bell Telephone, L.P., d/b/a AT&T Texas v. City of Houston, No. 07-20320, U.S. Court of Appeals for the Fifth Circuit. TCAA and TML filed a brief in support of the City of Houston, arguing that the Federal Telecommunications Act (FTA) does not provide a private right of action for telecommunications companies. TCAA and TML also argued that the FTA does not preempt a city’s ability to require a telecommunications provider to pay to move its infrastructure when the city has a right-of-way construction project, and that any state issues involved in this question should be resolved at the state level. The amicus brief was filed on September 11, 2007, and a decision is pending.
Contract City Attorneys IRS Status: TML and TCAA filed a letter in an appeal by the city attorney of Henderson, Texas, to the IRS. The IRS had ruled that the city attorney, as a statutorily created "city office," was not an independent contractor for purposes of income tax, but rather a city employee. TML and TCAA explained that city attorneys often have many clients, including a city, and that in such cases they are truly independent contractors, just as they are when hired by any client. The letter urged the IRS to continue to make determinations of independent contractor status based on the tests in place, and to abandon from its analysis of such cases as a determining factor whether there is a statutorily created office of “city attorney" in Texas state law.
TCEQ Water Quality Standards: TML recently submitted a letter to Mark Vickery, the deputy executive director of the Texas Commission on Environmental Quality (TCEQ), regarding the agency’s possible limitation of total maximum daily loads (TMDLs) for bacteria. TCEQ has never issued bacteria TMDLs before, and the current water quality standards for contact recreation, when used to create these TMDLs, may create a standard that is difficult, if not impossible, to meet. TML asked the agency to delay the TMDL process until the contact recreation water quality standards can be reevaluated in light of the specific water uses and issues present in the state.
Whistleblower Act: City of Waco v. Robert Lopez, No. 06-0089 in the Texas Supreme Court. TML and TCAA argued that the reporting of a violation of an internal city policy to a supervisor by an employee should not trigger the protections of the Texas Whistleblower Act. The petition for review was granted and the case has been set for oral argument on September 27, 2007.
Open Meetings Act: Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, Gregg Abbott, Texas Attorney General, and the State of Texas, C.A. No. P-05-CV-75 in the United States District Court for the Western District of Texas. TCAA argued that, while city attorneys are committed to openness in government, the criminal provisions of the Texas Open Meetings Act are written such that it is almost impossible to properly advise city officials on discussion outside of formal meetings. As such, city attorneys seek more guidance as to how to advise city officials in regards to that provision. The suit was filed on September 26, 2005, and on November 7, 2006, the court held that the Texas Open Meetings Act provisions in question are constitutional because the speech at issue was uttered in the speaker’s capacity as a councilmember, and that the Act’s provisions are neither overbroad nor vague. The decision was appealed to the Fifth Circuit in April of 2007, and a decision is pending. The case number in the Fifth Circuit is 06-51587.
Cell Tower Siting: Sprint v. County of San Diego, Nos. 05-56076, 05-56435 in the United States Court of Appeals for the Ninth Circuit. TML and TCAA joined a brief filed by the National League of Cities in support of the County of San Diego, and argued that: (1) right-of-way use regulation of a county ordinance, which could be preempted by Section 253(a) of the federal Telecommunications Act, should be separately analyzed from the zoning aspect of the ordinance, which cannot be preempted by Section 253(a); and (2) the county ordinance was not preempted by Section 253(a). A motion for rehearing en banc was filed on July 9, 2007.
National Cable Franchising: In the Matter of Implementation of Section 621 (a) (1) of the Cable Communication Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992, Docket No. MB 05-311 (Further Notice of Proposed Rulemaking – Effect of Order on Existing Cable Franchises), at the Federal Communications Commission. TML and TCAA commented that the Texas legislature has streamlined the cable franchising process in Texas, and provides for an almost immediate grant of authority to provide service. If the Federal Communications Commission intends to establish new standards or requirements for incumbent cable franchises, TML and TCAA requested that those changes do not undercut or diminish the standards set out in Texas’ hard-fought S.B. 5.
Annexation: Village of Salado v. Lone Star Trailer II, Ltd. and Lone Star Storage Trailer, No. 03-06-00572-CV in the Third Court of Appeals in Austin. Lone Star Trailer sued the Village of Salado regarding an annexation of Lone Star's land, arguing that the Village's annexation ordinance is void under Local Government Code Section 43.025 (voluntary annexation for type B city) because the Village did not receive consent from the sole contiguous landowner. TML and TCAA argued that, under Section 43.025: (1) “contiguous area” means the entire area to be annexed, not just those tracts that directly border the city; (2) the entire contiguous area can be annexed as a unified tract; and (3) the plain language of the voluntary annexation statute does not require the consent of each bordering landowner. Oral argument was held on May 9, 2007, and a decision is pending.
Texas Open Meetings Act: The City of Galveston, Texas; BP Energy Company, Intervenor; Board of Trustees of the Galveston Wharves v. Nancy Saint-Paul, No. 01-06-00580-CV in the First Court of Appeals in Houston. Saint-Paul filed suit against the City of Galveston alleging that the city posted inadequate notice on an agenda item relating to a lease agreement. The trial court held for Saint-Paul, and the city appealed. TML and TCAA argued that the notice was sufficient under the Open Meetings Act because it included the: (1) parties to the proposed agreement, (2) type of agreement, (3) subject of the agreement, (4) parties to the underlying lease agreement, and (5) location and size of the property at issue. The city’s appeal was filed on June 20, 2006, and a decision is pending.
Whistleblower Act: Montgomery County v. Park, No. 05-1023 in the Texas Supreme Court. Amici argued that simply removing unpaid duties from an employee does not constitute an actionable, adverse personnel action under the Texas Whistleblower Act. The Court denied the county’s petition for review in August of 2006, and this brief, filed September 7, 2006, is in support of the county’s motion for rehearing. On December 15, 2006 the county’s motion for rehearing was granted. Oral argument was heard on March 30, 2007, and a decision is pending.
Annexation: Hughes v. City of Rockwall, No. 05-0126 in the Texas Supreme Court. Amici argued that a city’s rejection of a landowner’s petition to join areas for annexation under an annexation plan pursuant to Section 43.052(i) of the Local Government Code was procedural in nature. Thus, the only remedy against the city for an alleged violation would be state-sponsored quo warranto. On January 20, 2005, the court decided against the city and remanded to require arbitration and grant a temporary injunction against Rockwall. The city filed a petition for review with the Texas Supreme Court on February 23, 2005. Petition for review was granted on December 9, 2005. Oral argument was heard on January 25, 2006, and a decision is pending.
Regulatory Takings: City of San Antonio v. El Dorado Amusement Company, No. 06-0481 in the Supreme Court of Texas. TML and TCAA argued that the City of San Antonio was within its authority to modify the zoning of a tract to prohibit the sale of alcoholic beverages, and that any loss in value to the owner was not sufficient to constitute a taking under applicable federal and state precedent. The Petition for Review was filed on June 12, 2006, briefing on the merits was submitted by both parties, and the petition for review was denied on June 1, 2007. A motion for rehearing was filed by the city on June 18, 2007, and a decision is pending.
DECIDED
Court Fees: Whether the optional juvenile case manager fee is unconstitutional, RQ-0579-GA. TML and TCAA argued, among other things, that optional misdemeanor court costs should not be viewed as punishment and should not be considered unconstitutional under equal protection or due process, even if optional court costs cause the fees for misdemeanor convictions to be higher in some county or municipal courts. This request was withdrawn and no opinion was issued.
Drainage Fees: Greater New Braunfels Home Builders Association, David Pfeuffer, Oakwood Estates Development Co., and Larry Koehler v. City of New Braunfels, No. 03-06-00241-CV in the Austin Court of Appeals. Amici argued that the Municipal Drainage Utility Systems Act (Act) is meant to grant cities additional means to establish and finance municipal drainage utility systems for the purpose of protecting the public health and safety from loss of life and property caused by surface water overflows, stagnation, and pollution. The Act was never meant to preempt the authority of a home rule city to adopt other, legal development fees. An appeal was filed on April 26, 2006, oral argument was heard on February 14, 2007. The court of appeals held that, since the City had adopted the provisions of chapter 402 of the Local Government Code, and the fees fit the definition of a drainage charge under the statutory scheme, the stormwater connection fee and the stormwater development fee are drainage charges under chapter 402. The court of appeals also held that the City failed to follow the statutory requirements imposed by chapter 402, including publishing notices, holding hearings, assessing the charges against all property owners within the service area, and exempting lots on which no structure exists. The court of appeals reversed the trial court’s judgment and rendered judgment declaring that the complained-of portions of the City’s stormwater fee ordinances were invalid as improperly adopted chapter 402 drainage charges.
Substandard Buildings: City of Jacksboro, Texas v. Perry Teague, No. 06-0389 in the Texas Supreme Court. The principal issue in this case is whether a district court lawsuit contesting a city’s substandard building demolition order should be considered as a petition for a writ of certiorari, as required under Texas Local Government Code Section 214.0012. The position of the city, which was supported by an amicus brief from TML and TCAA, as well as the Texas attorney general’s office, is that a district court lawsuit does not act as a proper plea to the jurisdiction, as the lower court held. The city’s petition for review was denied on June 22, 2007. A motion for rehearing was filed on July 6, 2007 and a decision is pending.
Gas Rate Cases: City of Tyler v. CenterPoint Energy Entex, No. 06-0735 in the Texas Supreme Court. TML and TCAA argued that the City of Tyler is entitled to reimbursement for costs associated with a prudence review of CenterPoint’s rates under a purchased gas adjustment clause. The city’s petition for review was filed on August 21, 2006. The Supreme Court of Texas dismissed the appeal as moot on June 1, 2007.
Building Codes: Duty of a municipality to adopt the International Residential Code and the International Building Code, RQ-0567-GA. TML and TCAA (along with the Building Officials Association of Texas) argued, among other things, that a city may amend its building codes to meet local concerns, and whether to amend life safety provisions is arguably not advisable, but also arguably legally permissible. This request was withdrawn July 2, 2007.
Public Information Act: Disclosure of e-mail protected by the attorney-client privilege, Request Identification No. 275919. TML and TCAA argued that the attorney general has clearly stated the elements used to determine whether a communication between an attorney and his or her client is protected from disclosure, and urged the attorney general to reject the false assertion by the requestor that the disclosure (or nondisclosure) of a communication made between an attorney and the governmental body that he or she represents is governed in any way by Section 551.129 of the Open Meetings Act (authorizing an “out-house” attorney to attend an executive session via telephone or Internet communications).
Vested Rights: City of San Antonio v. En Seguido, Ltd., No. 04-06-00206-CV in the San Antonio Court of Appeals. TML and TCAA filed a letter brief as amici curiae, supporting the city’s position that a vague, one-lot plat filed in 1971 does not constitute the same “project” under Texas Local Government Code Chapter 245 as a currently-contemplated one hundred home subdivision, and therefore should not be allowed to maintain vested rights from that 1971 filing. The city’s appeal was filed on March 31, 2006, oral argument was heard on February 13, 2007. The court of appeals reversed the summary judgment and remanded to the trial court, stating that the record did not contain enough evidence to conclusively establish that the project did not change between the filing of the plat in 1971 and the beginning of work (more than thirty years later), and also whether actions taken by En Seguido constituted “progress toward completion” of the project.
Tax Abatements: Circumstances under which a county may opt out of an agreement made under chapter 312, Tax Code, the Property Redevelopment and Tax Abatement Act, RQ-0514-GA, Texas attorney general’s office. TML argued that economic development grant agreements may be tied to property taxes collected from a business prospect without complying with the provisions of the property tax abatement statute, Chapter 312 of the Texas Tax Code. The request was withdrawn and the file has been closed.
Disability: City of Grapevine v. James B. Davis, No. 06-0318 in the Texas Supreme Court. Amici argued that running is not a major life activity under the Texas Commission on Human Rights Act (TCHRA) and that the burden-shifting test of McDonnell Douglas applies to a disability claim under the TCHRA. The city's petition for review was filed on May 8, 2006. Motion for Rehearing was denied on March 9, 2007.
Impact Fees Imposed on School Districts: Whether section 11.168, Education Code, prohibits a municipality from imposing impact fees on a school district to help fund additional infrastructure made necessary by proposed new school district facilities, RQ-0506 Texas attorney general’s office. TML argued that the provisions of H.B. 1826 (2005) do not prohibit a city from assessing impact fees against a school district. In Opinion No. GA-496, the attorney general concluded that Education Code Section 11.168 does not prohibit an independent school district from paying impact fees imposed by a municipal corporation on the district for the district's new school development.
Tax Increment Financing: Whether a municipality may designate an area as a “reinvestment zone” in which the financing plan does not include the issuance of bonds on notes, RQ-0442-GA, Texas attorney general’s office. TML argued that tax increment financing is not limited to projects that are financed by bonds. The requestor had implied that because the Texas Constitutional enabling provision for tax increment financing mentions the issuance of bonds for purpose of redevelopment, bonds would be the only method of increment financing. TML pointed out that pay-as-you-go tax increment financing need not rely on the Texas Constitution for authorization, since full taxes are paid, and therefore bonds are not necessary. In Opinion GA-0514, the attorney general concluded that a city may not designate an area as a reinvestment zone unless the area is "unproductive, underdeveloped, or blighted" within the meaning of article VIII, section 1-g(b) of the Texas Constitution, even if the area's plan of tax increment financing does not include issuance of bonds or notes.
Open Meetings Act: Whether a governmental body may selectively admit members of the public into an executive session under the Open Meetings Act, RQ-0496-GA, Texas attorney general’s office. TML and TCAA argued that: (1) notice of an executive session is adequate if it is sufficient to apprise the general public of the subject matter of the meeting; (2) no specific deliberation is required when deciding who may attend an executive session; and (3) improperly allowing a third party into an executive session does not constitute a crime. In Opinion No. GA-0511, the attorney general concluded that the Open Meetings Act does not permit a governmental body to admit members of the public to a closed meeting to give input regarding a public officer or employee.
Cities Competing with Private Business: Whether a municipality may operate a commercial compost/mulch business that sells its products outside municipal boundaries, RQ-0508-GA, Texas attorney general’s office. TML and TCAA argued that a city is not prohibited from selling mulch in competition with private businesses. In Opinion No. GA-506, the attorney general concluded that, because a home rule city's sale of compost products to persons outside the city limits does not generally appear to contravene constitutional or statutory law, and because the Legislature has not with unmistakable clarity forbidden a home rule city from selling compost products outside its city limits, a home-rule city may sell compost products outside its city limits.
National Cable Franchising: In the Matter of Implementation of Section 621 (a) (1) of the Cable Communication Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992, Docket No. MB 05-311, at the Federal Communications Division. TML and TCAA argued that the Texas legislature has streamlined the cable franchising process in Texas, and provides for an almost immediate grant of authority to provide cable service in the state. If the Federal Communications Commission intends to establish new standards or requirements for cable franchises, TML and TCAA requested that those changes do not undercut or diminish the standards set out in Texas’ hard-fought S.B. 5. In fact, TML and TCAA submit that, if anything, the standards and requirements in S.B. 5 be used as a model for any federal-level changes. Finally, TML and TCAA argued that the Commission does not have the authority to enact national cable franchising rules. In December of 2006, the FCC adopted an order in the case, and concluded that the Texas state-issued video franchise is generally excluded from the provisions of the order.
Annexation: Authority of a type A general law municipality to annex land outside its territorial jurisdiction, RQ-0480-GA, Texas attorney general’s office. TML and TCAA argued that Local Government Code Sections 53.001 and 43.901 worked to validate an annexation by a general law city that extended beyond the city’s extraterritorial jurisdiction, and that the courts are the proper forum to challenge the validity of an annexation. In Opinion No. GA-478, the attorney general concluded that a type A general law city with fewer than 5,000 inhabitants is authorized to annex territory it does not own only if the territory is in the city's one-half mile extraterritorial jurisdiction.
Annexation: Karen Hall v. City of Bryan, No. 10-05-00417-CV in the Waco Court of Appeals. Amici argued that the only means to challenge the contents of an annexation service plan is through a quo warranto proceeding brought on behalf of the state. In addition, Amici argued that, so long as a city provides services in accordance with the terms of its annexation service plan, disannexation is an improper remedy. The brief was filed on September 5, 2006, and oral argument was held on September 20, 2006. On November 29, 2006 the court of appeals held that Local Government Code Section 43.141 only provides for disannexation if the city fails to perform its obligations under the service plan, not if it fails to provide all services desired by the residents of the annexed area under Section 43.056.
Annexation and Prior Use: Olan Karm and Marc Payne v. City of Castroville, No. 04-05-00512 CV in the Fourth Court of Appeals, San Antonio. TML and TCAA argued that the filing of a subdivision plat does not “vest” the use of property subsequent to annexation pursuant to Section 43.002 of the Texas Local Government Code. Nor does the filing of a subdivision plat vest a landowner’s right to use property in a certain way after annexation pursuant to Chapter 245 of Local Government Code. Oral argument was held on May 3. The court of appeals held on November 15, 2006, that the land was not properly annexed by the city because the city did not grant the landowner’s petition for voluntary annexation within the time required by Texas Local Government Code Section 43.028. The court did not rule on the other issues involving possible vested rights after annexation.
Collective Bargaining: Whether a municipality violates Section 617.002, Government Code, by reorganizing and meeting with a labor organization as the sole representative of a designated group of employees, RQ-0520-GA, Texas attorney general’s office. TML argued that a city is prohibited from entering into a collective bargaining agreement by the Texas Government Code, and that specific legislation is required to authorize such an agreement. On, October 13, 2006, Representative Krusee withdrew his request for the opinion.
Premise Liability: State of Texas and the Texas Parks and Wildlife Department v. Ricky Shumake et al., No. 04-0460 in the Texas Supreme Court. Amici argued that the court should look at the Legislature’s intent based on existing common law at the time they passed the Recreational Use Statute and not subsequent common law principles. Amici further argued that the Legislature did not intend to adopt the duty to warn when it passed the Recreational Use Statute. On June 23, 2006, the Court held for the Shumakes, stating that under the Recreational Use Statute, a premise owner has no duty to warn users, but can be liable for gross negligence in maintaining the property. A motion for rehearing was denied on September 22, 2006.
Restrictive Covenants: City of Heath v. Mark Duncan et al., No. 05-0139 in the Texas Supreme Court. Amici argued on behalf of the City of Heath that landowners in a residential subdivision do not have a compensable interest in restrictive covenants when a city takes property for public use. The appeals court held against the city on September 23, 2004, and a motion for rehearing was denied on January 13, 2005. The city filed a petition for review with the Texas Supreme Court on February 25, 2005, and TML filed an amicus letter brief on May 5, 2005. Briefing on the merits was requested on June 6, 2005, and the Court denied the petition on June 16, 2006. A motion for rehearing was denied on August, 11 2006.
Sovereign Immunity: City of Midland v. Roger Goerlitz, D/B/A American Wood Waste Recycling, No. 03-0185 in the Texas Supreme Court. Amici argued that the Midland City Charter and Local Government Code § 51.075 provisions allowing the city to “sue and be sued” do not, by themselves, waive sovereign immunity. According to Government Code § 311.034, the legislature intended to preserve the state’s interest in managing fiscal matters by not construing a statute as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. Nothing in the Local Government Code or the Midland City Charter indicated any legislative intent to unambiguously waive sovereign immunity. The city appealed the Eighth Court of Appeals’ decision. The petition for review was filed on February 24, 2003. Briefing on the merits was requested on June 16, 2003. The petition is still pending. An opinion was issued on August 31st, 2006.
Conflicts Disclosure: Conflict of interest disclosure requirements for local government officers and persons who contract with local governmental entities, RQ-0451-GA, Texas attorney general's office. State Representatives Beverly Woolley and John Smithee and Texas Education Agency Commissioner Shirley Neeley requested an opinion from the Attorney General regarding the interpretation and compliance with H.B. 914, which enacted Chapter 176 of the Local Government Code. TML submitted comments and suggestions on various problems with interpretation and logistical compliance, and Opinion No. GA-446 was issued on August 2nd, 2006.
Civil Service: City of Houston v. Clark, No. 04-0930 in the Texas Supreme Court. Amici argued on behalf of the city that express language in the civil service laws granting employee appeals of civil service disciplinary decisions does not necessarily preclude a city from appealing in the interim. Failure to allow cities any appellate process would create a disincentive to engage in disciplinary arbitration. On June 30, 2006, the Court held for the City, stating that a city, as well as an employee, may appeal the decision of an independent hearing examiner.
Annexation: Meaning of the term “service plan” under Sections 43.056 and 43.141, Local Government Code, for purposes of a petition to disannex submitted by the voters of an annexed area of a municipality, RQ-0447-GA, Texas attorney general’s office. TML and TCAA respectfully requested that the attorney general’s office decline to answer the request because it involves a fact issue that cannot be resolved in the opinion process. TML’s and TCAA’s position is that, for every annexation, a city must adopt a service plan that is “legally compliant,” which means that the plan must conform to the requirements of Section 43.056, which is up to each individual city to determine based on the advice of local legal counsel. A court is the proper forum to answer this question. On June 22, 2006, the Attorney General’s Office declined to issue an opinion on the request.
Sovereign Immunity: Sipes v. City of Grapevine, No. 04-0933 in the Texas Supreme Court. Amici argued that a city’s implementation of the decision to install a traffic signal was a discretionary act. Therefore, Section 101.060(a)(1) of the Texas Civil Practices & Remedies Code applied, granting the city sovereign immunity against tort claims during the period between the decision to install the traffic signal and the installation of the traffic signal. On June 16, 2006, the Supreme Court held for the City, finding that there was duty to maintain a traffic signal that had not yet been installed.
Statewide Cable Franchises: Texas and Kansas City Cable Partners, L.P., d/b/a Time Warner Cable v. City of West University Place, Burt Ballanfant, and Michael Ross, No. H-05-4177 in the Federal District Court for the Southern District of Texas, Houston Division. TML and TCAA, as amici curiae, argued that that the one percent PEG fee that a cable provider must pay pursuant to Chapter 66 of the Texas Utilities Code (added by S.B. 5, 2005) is not preempted by the federal Cable Act. A scheduling conference was held on April 12, 2006. No date has been set for trial. A notice for dismissal was filed on June 5, 2006. An order dismissing the case was issued June 7, 2006.
Gas Ratemaking: Alliance of CenterPoint Cities v. CenterPoint Energy, Texas Railroad Commission Docket No. 9630. The issue in this docket arose from improper notice to the public of a proposed rate increase. The Gas Utilities Regulatory Act (GURA) mandates notice to the public of any proposed rate increase. CenterPoint Energy argued that the refusal of the Alliance of CenterPoint Cities (ACM cities) to approve or deny the rate increase created a delay that led to an enactment of the increase by operation of law. The ACM cities and TML (as amicus curiae) disagreed, and argued that without proper notice, the ACM cities cannot make an appealable final decision. Thus, the Railroad Commission (RRC) does not have jurisdiction to rule on the rates in question. On March 14, 2006, the RRC voted to defer the decision on jurisdiction pending receipt of further information on the notice issue. On April 21, 2006, both parties filed a joint motion to dismiss. On May 11, 2006, the RRC granted the dismissal.
Eminent Domain Procedures: City of Austin v. Harry M. Whittington, et al., No. 05-0912 in the Texas Supreme Court. Amici argued that the procedures for eminent domain found in Chapter 21 of the Texas Property Code do not require that a “necessity finding” be noted in an eminent domain resolution adopted by the council. In addition, amici argued that the additional “necessity” determination required by the appeals court is vague and needs clarification from the Court. A motion for rehearing was denied on March 17, 2006.
Development Codes: City of Dallas v. Vanesko, No. 04-0263 in the Texas Supreme Court. Amici argued on behalf of the city that the Dallas board of adjustment did not abuse its discretion in denying a variance on the grounds that the requested variance did not pertain to a condition involving “a restrictive area, shape, or slope,” as the Dallas development code requires. Petition for review was filed by Dallas on May 3, 2004. On April 7, 2006, the Court opined that the board of adjustment did not abuse its discretion in denying the variance, thus concluding that a city may enforce a zoning ordinance against a property owner whose substantially completed new home was built in violation of the ordinance, even though the city gave preliminary approval to the owner’s building plans.
Voluntary Payment Rule: Dallas County Community College District v. Bolton., No. 02-1110 in the Texas Supreme Court. Amici argued that the Court’s discussion of the “voluntary payment rule” should allow a city to keep already paid taxes or fees that are later held to be illegal. Amici argued that dicta in the case stating that the mere threat of a fine would make a payment to a governmental entity involuntary, and thus require a rebate, is in contravention to precedent that holds that mere threat of a fine is not sufficient to require a rebate. A motion for rehearing was filed on December 19, 2005. The Court denied the motion on February 24, 2006.
380 Agreements: Village of Bee Cave v. Save Our Springs Alliance, No. 03-05-00148-CV in the Third Court of Appeals, Austin. Amici argued on behalf of the village that article III, sec. 52 of the Texas Constitution authorize economic development programs such as long-term Chapter 380 agreements. Amici further argued that long-term 380 agreements are best practices and protect taxpayer dollars. The court issued a memorandum opinion on January 13, 2006, granting a joint motion to dismiss and rendered judgment pursuant to the parties’ settlement agreement.
Gas Rate Cases: CenterPoint Energy Entex v. Railroad Commission of Texas, Victor G. Carillo, Charles R. Mathews, Michael L. Williams, City of Tyler, and State of Texas, No. 03-04-00731-CV in the Third Court of Appeals, Austin. Amici argued on behalf of the City of Tyler that: (1) the Texas Railroad Commission (Commission) has the authority to conduct a gas cost prudence review under a purchased gas adjustment (PGA) clause; and (2) a PGA clause prudence review is eligible for municipal reimbursement. The court ruled on February 24, 2006, that: (1) the Commission does have the authority to conduct a gas cost prudence review under a PGA clause; and (2) the Commission has the power to order refunds if it determines that the company’s gas purchase was imprudent. However, the court reversed the lower court’s judgment concerning reimbursement of expenses to the City.