A Note to Members: The format of the TCAA News newsletter is being changed to bring you more useful, up-to-date information about issues of interest to those who practice municipal law. The new format will be sent via e-mail on an approximately monthly basis, and the new design allows busy TCAA members to quickly and easily review the information.

Opinion No. GA-0365: concludes that the Aldine test (“largely independent of the control of others”) is the definitive test for determining whether a police officer is a “public officer.”

Opinion No. GA-0366: concludes that a county may not assess a drainage charge on behalf of a municipal drainage utility system.

Opinion No. GA-0367: concludes that the Harris County Animal Control Office is prohibited from providing confidential information to a private corporation that contracts with the City of Houston.

Opinion No. GA-0368: concludes that a civil service commission may not give retroactive salary increases to a municipal employee, unless a policy for the pay increase was already in existence prior to an evaluation.

Opinion No. GA-0377: concludes that a school board trustee may not vote to appoint himself to fill a vacancy created by the resignation of another trustee.

Opinion No. GA-0386: concludes that an employee of a municipal management district is prohibited from simultaneously serving as a member of the Texas Legislature.

Opinion No. GA-0391: concludes that the practices of engineering and architecture are separate professions according to their respective statutes. As such, the question of whether an engineer may comprehensively design a building without the involvement of an architect is a question of fact that cannot be answered by the attorney general’s office.

Opinion No. GA-0393: concludes that a chief of police is not prohibited by dual office-holding or incompatibility from serving as a school board trustee.

Recently Filed Cases Update:

Voluntary Payment Rule: Dallas County Community College District v. Bolton., No. 02-1110 in the Texas Supreme Court. Amici argued that 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, and is pending.

Pending Cases Update:

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, Section 52, of the Texas Constitution authorizes 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. Oral argument previously set for October 12, 2005, was postponed pending a joint motion to dismiss based on the passage of H.J.R. 80.

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. The Court granted the petition for review on August 26, 2005. Oral argument was held on November 16, 2005, 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 is set for January 25, 2006.

Open Government Training: Senate Bill 286, passed during the Seventy-Ninth Regular Session, requires each elected or appointed member of a governmental body to take at least one hour of training in both the Open Meetings Act and the Public Information Act. The attorney general’s office allows the requirement to be met in three ways: (1) live training provided by that office; (2) a video that will be available to borrow or online; and (3) certification of other entities, such as TML, to provide the training. TML was the first entity to submit materials to the attorney general's office for certification and is currently awaiting approval.

For detailed information on S.B. 286, including how to become certified, please visit www.oag.state.tx.us and click on “Open Government Training” near the bottom right corner of the page.

Conflicts Disclosure Law: H.B. 914, passed during the 2005 legislative session, became effective on January 1, 2006. The bill enacts Local Government Code Chapter 176 and requires mayors, councilmembers, city managers or administrators, and certain other city officials to file a “conflicts disclosure statement” with a city’s records administrator within seven days of becoming aware of either of the following situations: (1) a city officer or the officer’s family member has an employment or business relationship that results in taxable income with a person who has contracted with the city or with whom the city is considering doing business; or (2) a city officer or the officer’s family member receives and accepts one or more gifts with an aggregate value of $250 in the preceding 12 months from a person who conducts business or is being considered for business with the officer’s city. The bill also requires a vendor that wishes to conduct business or be considered for business with a city to file a “conflict of interest questionnaire.” The conflicts disclosure statement (FORM CIS) and the conflict of interest questionnaire (FORM CIQ) were created by the Texas Ethics Commission (TEC) and are available online at www.ethics.state.tx.us .

TCEQ Adopts New Certificate of Convenience and Necessity (CCN) Rules: House Bill 2876, passed during the 2005 legislative session, became effective on September 1, 2005. The bill requires a city to obtain written consent of the landowners in an area before obtaining a new CCN outside its extraterritorial jurisdiction (ETJ), or amending a CCN outside its ETJ. In contrast, rule changes proposed by the Texas Commission on Environmental Quality (TCEQ) to implement the bill would have voided any current CCN outside the ETJ if the landowners did not provide written consent. That proposal was bad for some cities and good for others. After a public hearing on the proposed rules, at which many city officials and attorneys testified or submitted written comments, TCEQ removed the language that automatically voided a city’s CCN outside its ETJ. Further, language was added presuming that existing customers who live in the ETJ (as of September 1, 2005), who regularly receive and pay for service, have consented to inclusion in the CCN, unless they object in writing.

The final rules (30 Texas Administrative Code, Chapter 291, Subchapters A and G) were adopted on December, 14, 2005, and can be viewed by visiting TCEQ’s Web site at www.tceq.state.tx.us .

2005 Riley Fletcher Basic Municipal Law Seminar: TCAA is proud to announce the Seventh Annual Riley Fletcher Basic Municipal Law Seminar. The seminar honors Riley Fletcher, who was an attorney with the Texas Municipal League for twenty-five years. During much of his tenure, Mr. Fletcher was the one and only TML attorney, and he handled dozens of questions from city officials each day. Mr. Fletcher passed away on September 1, 1998, and this seminar is our way of letting his memory live on.

The seminar will be held on February 24, 2006, in Lubbock and will cover topics such as: (1) types of Texas cities; (2) open government; (3) ethics; (4) liability; (5) land use; (6) municipal court; (7) personnel; and (8) purchasing.

While this seminar is targeted to attorneys, any city official can benefit from the information. Watch for a registration e-mail soon!

2006 South Padre Conference: Save the dates! The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 14-16, 2006. Registration information will be available in the spring.

Sponsorships: If you or your firm is interested in serving as a sponsor for the 2006 South Padre Conference, please contact Scott Houston at legalgovt@tml.org or 512-231-7400.

TCAA Awards and Certifications: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas. View information on several of awards programs, including the municipal certification program, at www.texascityattorneys.org . In particular, the Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney will be awarded in South Padre this June. Please take a moment to nominate an assistant city attorney who has made significant achievements.

TCAA Contracts with LexisNexis for Low-Cost Legal Research Packages: TCAA has an agreement with LexisNexis to offer on-line electronic legal research service at discount prices for its government members. Detailed information about each plan level may be viewed by going to www.texascityattorneys.org. Also, keep in mind that TCAA members may be eligible for other special offers from their local representative.

TCAA members may use the information herein for any purpose. No other person may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas City Attorneys Association.

Texas City Attorneys Association
1821 Rutherford Lane, Suite 400
Austin, Texas 78754
www.texascityattorneys.org

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