TCAA NEWS
(Volume 5, Issue 1 – January 2010)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

TCAA South Padre Conference to be held on June 9-11, 2010: The TCAA Board has set the program for this outstanding MCLE opportunity for municipal attorneys. Publicity and hotel and registration information for the conference will be available soon.

2010 Riley Fletcher Basic Municipal Law Seminar to be held in Dallas: The Eleventh Annual Riley Fletcher Basic Municipal Law Seminar will be held at the Dallas City Hall on February 26, 2010. Topics will include: (1) types of city government; (2) open government; (3) economic development; (4) ethics for city attorneys; (5) Tort Claims Act; (6) personnel; (7) municipal court; (8) purchasing; and (9) land use. The seminar is great for new city attorneys or those wanting a refresher in the basics! Special thanks to our sponsor:

Akers & Boulware-Wells, L.L.P.

To register for the seminar or for more information, please visit www.texascityattorneys.org.

LisTCAA Listserv Debuts: Many Texas city attorneys participate in the International Municipal Lawyers Association Municode listserv. Now’s your chance to glean and share information on a listserv that consists only of Texas attorneys! To join, please go to www.texascityattorneys.org and click on the "LisTCAA" link on the left side of the page.

IMLA Conferences: The International Municipal Lawyers Association conducts various seminars that complement the TCAA programs. This month’s featured seminar is IMLA’s 2010 mid-year seminar. The seminar will be held on April 18-20, 2010, at the Omni Shoreham Hotel in Washington, D.C. For more information or to register, go to www.imla.org and click on “events.”

Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.

Articles

Availability of Attorney’s Fees to Claimants in Contract Actions Against Cities, Jeffrey S. Chapman, Ford, Nassen & Baldwin, P.C. Texas Local Government Code Chapter 271, Subchapter I, expressly waives sovereign immunity for contract actions against cities and other local governmental entities. The provisions of the subchapter allow contractors on public projects to sue in the event claims arise during the course of performance on a construction project. A significant change made to the law in 2009 by H.B. 987 involves the recovery of attorney’s fees for claimants suing cities. Read more.

Employee Privacy: When Are Employee Text Messages on Government-Issued Devices Protected? Martin Thornthwaite, Strasburger. Just three weeks ago, the United States Supreme Court agreed to review whether governmental employees have a reasonable expectation of privacy when texting on government-issued pagers. The Court’s decision could likely set the tone for future texting/invasion of privacy cases against both public and private employers. Read more.

Recent Texas Cases of Interest to Cities
Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Private Real Property Rights Preservation Act: City of Houston, et al., v. Joel Guthrie, et al., No. 01-08-00712-CV (Tex. App.— Houston [1st Dist.] Dec 31, 2009). Fireworks operators (Joel Guthrie, Fireworks Center 50, and Paul Dewey Jones) and the owners of the real property leased to the fireworks operators (Metro Church and Gulf Coast Avenue C, L.L.C.) sued the City of Houston and three municipal utility districts (MUDs) contesting the city and MUDs’ use of strategic partnership agreements and the City of Houston Fire Code to ban the sale of fireworks outside the city limits where the business and real property are located. The city had entered into the agreements with the three MUDs to allow the city to annex certain areas within those MUDs, which included the real property owned by, and leased to, the plaintiffs. As a result, the city could collect sales tax from the areas and also enforce the city fire code, including a ban on the possession of fireworks in the areas.

The plaintiff property owners and fireworks operators claimed, among other things, that the city and MUDs’ actions constituted takings under the Private Real Property Rights Preservation Act (PRPRPA) and United States Constitution. At trial, the City and MUDs filed pleas to the jurisdiction, which were denied. The city and MUDs filed for an interlocutory appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practices and Remedies Code.

Sovereign immunity is waived and abolished under the PRPRPA for certain governmental entities, as long as the other requirements of the statute are satisfied. TEX. GOV’T CODE § 2007.004. However, the PRPRPA waives sovereign immunity only for a limited scope of governmental actions, and limits the categories of persons who may bring an action under the statute. TEX. GOV’T CODE § 2007.003. In order to have standing under the PRPRPA, a plaintiff must be considered an “owner” pursuant to Section 2007.002(2), and must allege a taking under the U.S. Constitution or Texas Constitution or contend that a governmental action reduced the market value of the property by at least twenty-five percent. TEX. GOV’T CODE § 2007.005(2).

In this case, the court of appeals held that the fireworks operators did not have standing to sue under the PRPRPA. The fireworks operators, as lessees of the real property at issue, did not fit the definition of “owner” under the PRPRPA. The court noted that the operators never alleged that they have a right to have legal title of the real property at issue, and consequently rejected arguments that their leasehold interests constituted “equitable title” in the real property.

The court of appeals reached different conclusions on the PRPRPA claims of the two plaintiff property owners. First, it held that property owner Metro Church did not have standing under the PRPRPA, as Metro Church did not allege sufficient facts to amount to a constitutional taking. Further, Metro Church did not allege that it suffered any reduction in the market value of its property, and therefore did not allege a sufficient reduction in the value of the land to make a PRPRPA claim. The court remanded Metro Church’s claims under PRPRPA to the trial court to give Metro Church the opportunity to cure the defect in its petition.

Meanwhile, the court of appeals held that the other property owner, Gulf Coast Avenue C, did contend that the proposed firework ban would reduce the value of the property by at least forty percent, thereby alleging sufficient facts to establish standing under the PRPRPA. Further, it disagreed with the city’s argument that because the actions taken by the city occurred within annexed areas and not the extraterritorial jurisdiction, the property owners did not allege actions by the city that would come within PRPRPA’s limited waiver of immunity. The court reasoned that Section 2007.003(a)(3) of the Government Code specifically addressed the situation at hand where the actions of the city are within the city limits and annexed areas but the effect of the actions are extended unequally to the extraterritorial jurisdiction.

On the pleas to the jurisdiction filed by the city on claims other than those pursuant to the PRPRPA, the court of appeals generally found that the trial court erred by denying them. The court held that takings claims alleged under the U.S. Constitution were not ripe because state takings claims were not resolved, and takings claims under the Texas Constitution apart from PRPRPA claims were improper because proper venue was in the county courts at law and not in district court. Further, the court held that the trial court erred in failing to deny claims to the jurisdiction in favor of the city for claims by the fireworks operators and property owners requesting declaratory relief from the strategic partnership agreements, the limited purpose annexations, and the enforcement of the city fireworks ban.

Employment Discrimination: City of San Antonio v. Pedro Gonzalez, No. 04-08-00829-CV (Tex. App.—San Antonio Dec 23, 2009) (mem. op.). The court of appeals withdrew its November 4, 2009, decision and substituted it with this opinion. However, it appears that the reasoning is similar and the result was the same. Pedro Gonzalez filed a suit against the city (acting by and through its agent – CPS Energy) alleging gender discrimination after he was terminated. He claimed at the trial level that a similarly situated female employee, Yvonne Lewis, was not terminated for committing the same security violation as Gonzalez, and the jury found that gender was a motivating factor in the decision to terminate. The court of appeals reversed, holding that Gonzalez’s misconduct and Lewis’s misconduct were not of “comparable seriousness,” and that there was no evidence that the two employees were similarly situated.

TCEQ: City of Austin v. Tex. Comm’n on Envtl. Quality, et al., No. 03-07-00699-CV (Tex. App.—Austin Dec 31, 2009). The court of appeals held that the effective date of TCEQ’s decision on KBDJ’s water pollution abatement plan in the Edwards Aquifer was not tolled by the city’s filing a motion to overturn under Chapter 213 of the TCEQ’s agency rules and, therefore, the city failed to file suit within 30 days after the effective date of TCEQ’s decision as required by Texas Water Code Section 5.351(b).

Dangerous Dogs: Jason Loban v. City of Grapevine, et al., No. 2-09-068-CV (Tex. App.—Fort Worth Dec 31, 2009) (mem. op.). The court of appeals held that the city was not entitled to monetary relief on its dangerous dog fines and fees owed by Loban because the city filed only a general denial and plea to the jurisdiction and did not request monetary relief on the fine owed to it by Loban.

Takings: City of Houston v. Wallace Ray Mack, Jr., et al., No. 01-09-00427 (Tex. App.—Houston [1st Dist.] Dec 22, 2009). The court of appeals held that the Macks’ takings claims were ripe even though they did not formally apply for a building permit or seek a variance regarding the subject property because a request for a building permit or variance under the city’s ordinances would have been futile.

Governmental Immunity: City of Tyler, et al., v. Valerie Smith No. 12-08-00159-CV (Tex.—App. Tyler Dec 14, 2009) (mem. op.). The court of appeals held that Smith’s declaratory judgment action regarding a possible city drainage easement on her property is barred by governmental immunity because the claims actually relate to either money damages or to controlling the actions of a city.

Attorney General Opinions of Interest to Cities
Note: Included opinions are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion No. GA-0747 (ETJ): Concludes that, while a city must generally comply with the requirements of Chapter 42 of the Local Government Code when acquiring extraterritorial jurisdiction (ETJ), the attorney general cannot make a determination as to whether a city complied with relevant law in a situation which would require the application of law to a set of disputed facts. The attorney general cannot, in an opinion, investigate and resolve disputed questions of fact or mixed questions of law and fact. Also, the attorney general cannot determine whether a city may validly hold ETJ property for the purpose of relinquishing it to another city once its jurisdiction lawfully extends to the tract. First, as a matter of general law, Texas courts do not look at a city’s motive to determine the validity of the city's legislative acts. Second, the attorney general cannot resolve legal issues where there are unresolved factual issues.

Opinion No. GA-0752 (Homestead for Property Tax): Concludes that Section 11.13(j) of the Tax Code defines “residence homestead” for purposes of the payment of property taxes to include “a structure . . . together with the land, not to exceed 20 acres,” regardless of whether any part of the property is located in a platted subdivision. If the chief appraiser finds that contiguous lots totaling less than twenty acres are being used as a residence homestead, the taxpayer is entitled to an exemption on the entire property. Whether any particular group of contiguous lots would qualify as a “residence homestead” is a question of fact.

Opinion No. GA-0753 (Police Transportation of an Individual with Mental Health Issues): Concludes that an inpatient mental health facility or a mental health facility is not statutorily authorized to require a peace officer to transport a person in custody under Chapter 573, Health and Safety Code, to a medical facility for a medical evaluation prior to taking that person to the mental facility.

You can view attorney general opinions at www.oag.state.tx.us. On the same site, you can also sign up to receive e-mail updates of opinion requests and newly released opinions.

As a supplement to TCAA News, please check the TML Legislative Update Newsletter and TML’s Connect News Service .
Please contact Scott Houston, TCAA General Counsel, with your news, questions, and/or comments by e-mail at legalgovt@tml.org or by phone at 512-231-7400.
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.
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