(Volume 4, Issue 1 – January 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates
2009 Riley Fletcher Basic Municipal Law Seminar to be held in Austin: The Tenth Annual Riley Fletcher Basic Municipal Law Seminar will be held in Austin on February 13, 2009. Special thanks to our sponsor::
Akers & Boulware-Wells, L.L.P.
TCAA is “Going Green”! Special note on this and all upcoming seminar materials: TCAA will no longer provide binders for speaker papers or printed materials of any kind. Instead, TCAA will put all speaker papers on the TCAA Web site under “speaker papers” for attendees to download in advance, if they so desire. No written materials (except for late speaker materials) will be provided at the seminar location.
To register for the seminar or for more information, please visit www.texascityattorneys.org.
TCAA South Padre Conference to be held on June 10-12, 2009: It is cold in some parts of Texas, but TCAA members should already be looking forward to fun in the sun in 2009! Planning has already commenced for next year’s South Padre Conference, and hotel and registration information for the conference will be available soon.
TCAA Awards: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas:
For more information on these awards, please go to www.texascityattorneys.org.
Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.
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.
Loving v. City of Houston, No. 14-07-00621-CV (Tex. App.—Houston (14 Dist.), January 8, 2009). On January 26, 2005, Gloria Loving submitted a request to the City of Houston under the Public Information Act for a copy of all information pertaining to a specified incident report involving Quient Wolford. The incident also involved a juvenile named Michael Torres. The city denied the request for information based upon previous determinations by the attorney general that the information at issue was confidential because it contained law enforcement records in which a juvenile was alleged to have engaged in delinquent conduct. Loving then, through her attorney, requested that attorney general review the city’s decision to withhold the information. Loving’s attorney questioned whether or not the information must be withheld under Section 552.101 of the Government Code in conjunction with Section 58.007 of the Family Code because the juvenile in the incident report was tried as an adult. The attorney general’s office responded that it would defer to the representations of the city, as it could not determine issues of fact in the open-records process, and held that the city could withhold the information at issue. Loving filed a petition for a writ of mandamus to order the city to produce the requested information. The city filed a motion for summary judgment, and the trial court granted the motion without specifying the grounds.
On appeal, Loving contended that she was not seeking the law enforcement records of a child, but instead the records for an adult, Mr. Wolford. Thus, she argued that Section 58.007 of the Family Code should not apply. However, the appellate court noted that both parties agreed that the incident report in question related to the arrest and prosecution of Torres as well as Wolford, and that Torres was a child at the time of the incident. Because the law enforcement records that were requested involved a child, they must not be disclosed to the requestor.
Loving further argued that, because Torres was tried as an adult, the confidentiality provision in Family Code 58.007(c) did not apply. The court noted that the predecessor to Section 58.007, Section 51.14 of the Family Code, contained an exception to confidentiality when a juvenile was tried as an adult. But when that section was repealed and replaced by section 58.007, the language addressing juveniles who are tried as adults was not included. In accordance with previous case law, the court presumed that the language in the predecessor statute was excluded for a reason and therefore the excluded language is no longer the law under 58.007.
Finally, the parties disagreed over whether or not Section 552.321 of the Government Code gave Loving the right to file a suit for a writ of mandamus against the city when the attorney general determined that the requested information may not be disclosed. While the court determined that under certain circumstances a mandamus suit may be filed against a governmental body to compel it to make information available, the information at issue was held to be confidential pursuant to section 58.007 of the Family Code. As such, the city had no duty to provide the requested information even if Loving had the right to file a suit for a writ of mandamus.
Inverse Condemnation: TCI West End, Inc. v. City of Dallas and Texas Historical Comm’n, No. 05-08-00319-CV (Tex. App. – Dallas, Dec. 19, 2008). This case involves whether it is a taking for a city or other governmental body to make a property owner pay for a historic building that the property owner demolishes.
The property owner, TCI, wanted to demolish a building on property it owned in the city’s historic district. The city argued that the building should not be demolished because the demolition permit was improperly obtained and TCI did not receive other required authorization from the city. The city revoked TCI’s demolition permit and ordered a halt to the demolition. Despite the order, TCI had the building demolished. The city sued TCI under Local Government Code Chapters 54 and 211 and sought to have the building reconstructed using as many of the original materials as possible, and sought civil penalties from TCI for each day it continued to violate the city’s ordinances. TCI filed counterclaims against the city and the city’s landmark commission, alleging inverse condemnation under Article I, Section 17, of the Texas Constitution, and other causes of action.
The city and commission filed pleas to the jurisdiction in response, claiming the trial court did not have subject matter jurisdiction over the counterclaims. The city argued, among other things, that it was protected by governmental immunity and that TCI’s claims were not ripe. The trial court dismissed TCI’s inverse condemnation action as not being ripe, and dismissed its other claims based on governmental immunity. TCI appealed.
The ripeness question comes from the separation of powers provision in Article II, Section 1, of the Texas Constitution. Courts are without jurisdiction to issue advisory opinions because such is the function of the executive department, not the judiciary. Tex. Const. art. II, sec. 1; Pub. Util. Comm'n v. Houston Lighting & Power Co., 748 S.W.2d 439 (Tex.1987). In land use situations, courts have concluded that a regulatory takings claim is not ripe until the governing body makes a final decision regarding an application of its regulations to the property. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
The city argued that TCI’s inverse condemnation takings claim is not ripe because TCI did not receive a final decision from the city regarding the building permit or city approval of the demolition. When the city revoked TCI’s demolition permit, TCI did not follow the city’s procedure for appealing the revocation of a demolition permit; instead, TCI simply demolished the building anyway. TCI argued that its claim is ripe because it has already lost all productive value of its property due to the fact that it cannot remove the building materials left behind by the demolition. In addition, seeking a decision from the city now would be futile.
The court of appeals affirmed the trial court’s dismissal of TCI’s inverse condemnation claim, holding that TCI’s claim is not ripe since it did not follow the city’s procedures to appeal the revocation of the demolition permit.
Takings: City of Dallas v. Heather Stewart, No. 05-07-01244-CV (Tex. App. – Dallas, Dec. 11, 2008) (mem. op.). The court of appeals affirmed in favor of the property owner holding that the city had to show that a house was a nuisance on the day it was demolished to defeat the property owner’s constitutional takings claim.
Civil Service: City of Weslaco v. Claudio Lucio, No. 13-07-00319-CV (Tex. App. – Corpus Christi-Edinburg, Dec. 22, 2008) (mem. op.). The court of appeals determined that the hearing examiner’s finding of jurisdiction was reasonable based on the examiner’s interpretation of the city’s collective bargaining agreement.
Sovereign Immunity—Tort: City of Taylor v. Laboratory Tops, Inc, No. 03-08-00357-CV (Tex. App. – Austin, Dec. 31, 2008) (mem. op.). Court of appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction because the plaintiff presented a question of fact as to whether the use of a city vehicle caused property damage under the Texas Tort Claims Act.
Attorney General Opinion REQUESTS of Interest to Cities
Note: The Texas Municipal League (TML) and/or the Texas City Attorneys Association (TCAA) often file comments on attorney general opinion requests. Those are noted under the “TML/TCAA Legal Defense Program” heading in this newsletter. For various reasons, TML and TCAA may not file comments on every request. As a service to TCAA members, some of those opinion requests will be highlighted in this section so that interested cities are aware of the request. The attorney general’s office provides a free e-mail notification of opinion requests at www.oag.state.tx.us.
Opinion Request No. RQ-0765-GA (Dangerous Dogs): This request asks about the authority of a local government to enact breed-specific legislation with regard to dogs. Specifically, it appears to argue that, because the provisions of the Health and Safety Code apply to “dangerous dogs” as specifically-defined by state law, a city could in theory enact breed-specific regulations that regulate dogs that are not designated as “dangerous.”
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-0688 (Incompatibility): concludes that the common-law doctrine of incompatibility does not bar an individual from simultaneously serving as chief of police of an independent school district and as a city council member of a city located within the geographical limits of the school district.
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 firstname.lastname@example.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.
Texas City Attorneys Association
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