TCAA NEWS
(Volume 3, Issue 1 – January 2008)
“Your Source for Information About the Texas City Attorneys Association”
News, and Updates

Register now for the 2008 Riley Fletcher Basic Municipal Law Seminar to be held in Arlington: The Ninth Annual Riley Fletcher Basic Municipal Law Seminar will be held at the Arlington Convention Center on February 22, 2008. 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! Registration is limited to 96 attendees, so register now! Go to www.texascityattorneys.org for information.

TCAA South Padre Conference to be held on June 11-13, 2008: Planning has already commenced for this year’s South Padre Conference, which will be held on June 11-13, 2008. This year promises an excellent program, including a presentation by Supreme Court of Texas Justice Dale Wainwright. Hotel and registration information for the conference will be sent to all members shortly.

TCAA Awards: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas:

  • TCAA’s Municipal Certification Program recognizes attorneys who demonstrate advanced knowledge and experience in municipal law. The program includes separate certifications for municipal prosecutors, municipal civil law attorneys, and office certifications.
  • The Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney.

For more information on these awards, please go to www.texascityattorneys.org.

TCAA and IMLA Partner to Provide Innovative Small Cities Membership Benefit: TCAA is pleased to announce a new partnership with the International Municipal Lawyers Association (IMLA). Under the program, TCAA will pay for those cities under 2,500 in population to be limited members of IMLA. To take advantage of this TCAA member benefit immediately, please e-mail the following information with “IMLA Membership” in the subject line to Tiffany Ducummon at tiffany@tml.org:

  • Your Name
  • City (or Cities) Represented
  • Your Address
  • Your E-mail Address
  • Your Phone and Fax Numbers

On behalf of TCAA and IMLA, we hope that you’ll take advantage of this exciting new program!

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

Articles

Ballinger City Attorney “Ebb” Grindstaff Surpasses Fifty Years of Service: On November 29, 1957, upon motion by L. A. Faubion, the Ballinger City Commission appointed Everett J. “Ebb” Grindstaff as city attorney with a retainer fee of $50.00 per month for his term of office. Each city council since that time has seen fit to continue his service as city attorney, and his term has continued for over fifty years. Ebb, as he is known, has been licensed for fifty-three years and is still a practicing attorney in Ballinger. During that period of time… Read more.

TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed

“Prop 2” Pollution Control Tax Exemption: TML filed comments with the Texas Commission on Environmental Quality (TCEQ) urging the commission not to expand the “Prop 2” pollution control property tax exemption is response to H.B. 3732 in 2007. Industry has urged TCEQ to allow the exemption for certain end products that reduce pollution, as opposed to the original intent of the legislation which was a limited exemption for legislatively mandated pollution control equipment.

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.

Civil Rights: Thomas P. Nixon v. City of Houston, No. 07-20162 (5th Cir. Dec. 19, 2007). Nixon, a police officer with the City of Houston, sued the city for employment retaliation under Section 1983 after he was suspended for speaking with the media and writing publications about city business. The city argued that, because Nixon was speaking as an employee, his speech was not protected by the First Amendment. The city also argued that even if he were speaking as a private citizen, Nixon’s statements undermined the public’s confidence in the city police department and interfered with its efficient operation. The trial court granted the city’s summary judgment motion. The Fifth Circuit affirmed, holding that: (1) Nixon’s statements to the media were made as an employee, not a private citizen, and were not protected by the Constitution; and (2) Nixon’s written items were prepared as a private citizen, but his right to freedom of speech was outweighed by the city’s interests in its relationship with its citizens and the efficient operation of the police department under Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

Dilapidated Buildings: Gene E. Bates v. City of Beaumont, No. 09-06-455-CV (Tex. App.—Beaumont Dec. 20, 2007). Bates sued the City of Beaumont after the city threatened to demolish his building under its dilapidated buildings ordinance. The city filed a plea to the jurisdiction arguing that Bates did not timely file his claims within 30 days as required by Chapter 214 of the Local Government Code. The trial court granted the city’s plea. The court of appeals held that Bates did timely file his claim under Chapter 214 of the Local Government Code because the “final decision” of the city, on which the 30 days is based, was its decision informing Bates that his repairs were not sufficient, not its original certified letter describing the building's deficiencies.

Takings: City of Dallas. v. VSC, LLC, No. 05-05-01227-CV (Tex. App.—Dallas Jan. 4, 2008). VSC operates a vehicle storage facility where it stores towed vehicles. VSC sued the City of Dallas for taking its property after the city allegedly took stored vehicles that were involved in a crime from VSC’s lot. The city then disposed of the vehicles and retained all fees involved. The trial court denied the city’s plea to the jurisdiction and the city appealed. The city argued that a taking of property due to a government’s exercise of its police power is not a compensable taking. The court of appeals held that the taking described by VSC may be compensable and affirmed the trial court’s denial of the city’s plea.

Utility Rates: Texas Municipal Power Agency, et al v. Public Utility Commission of Texas, et al., No. 04-0751; 04-0752 (Tex. Dec. 14, 2007). The issue in this case is whether the Public Utility Regulatory Act (PURA) gives the Public Utility Commission (PUC) the authority to review a rate set by contract between a municipally owned utility (MOU) and its member cities. The Supreme Court of Texas held that Chapter 35 of PURA does not impair private contract rights, and that Chapter 40 of PURA does not give the PUC jurisdiction to modify or regulate an MOU’s contracts with its member cities.

Sovereign Immunity: Justin Pieniazek v. Robert Ojeda, and the City of San Antonio, No. 04-07-00127-CV (Tex. App.—San Antonio Dec. 28, 2007) (mem. op.). Pieniazek, a fire fighter for the city, was threatened with disciplinary action due to his inability to pass a certification exam. Pieniazek and the city entered a settlement agreement on the issue, stating that the city would not take disciplinary action against Pieniazek for not passing the exam if Pieniazek would take a demotion instead. Pieniazek sued to overturn the settlement agreement. The city argued that the settlement agreement is binding, and that sovereign immunity bars Pieniazek’s claims. The trial court granted the city’s plea to the jurisdiction and dismissed Pieniazek’s claims. The court of appeals held that Pieniazek’s claims are barred by sovereign immunity and affirmed the trial court’s judgment.

Takings: Henry P. Porretto, Jr. and Rosemarie Porretto v. Jerry Patterson, et al, No. 01-05-00942-CV (Tex. App.—Houston [1st Dist.] Dec. 31, 2007). The Porrettos own waterfront property on Galveston Island, on which the state and City of Galveston allegedly executed leases harming the Porrettos’ interest in their land and clouding the title to their property. They brought various claims against the state and city. The state and city filed pleas to the jurisdiction arguing that they were protected by governmental immunity. The trial court granted the pleas. The court of appeals reversed, holding that: (1) the Porrettos’ inverse condemnation takings claims were not barred by governmental immunity and could be brought against the governmental entities; (2) public officials such as Jerry Patterson could be sued for trespass to try title, but (3) the trial court was correct in dismissing the breach of contract claim against Jerry Pattson.

Takings: Doss v. City of Victoria, No. 13-07-306-CV (Tex. App.— Corpus Christi-Edinburg December 20, 2007) (mem. op.). This memorandum opinion is in response to an appeal from a summary judgment in favor of the city. Doss and other homeowners sued the city, claiming that damage caused to their homes caused by high floodwaters was a taking, and the trial court granted the city’s plea to the jurisdiction based on sovereign immunity. The homeowners appealed, arguing that governmental immunity does not preclude claims for the unconstitutional taking of property, and that the city was aware that proceeding with a drainage improvement project without clearing occlusions in the sewer lines would cause the flooding at issue. The city asserted that a single flood event cannot rise to the level of a takings claim, but the court disagreed. The court held that if the city’s improvements to the system were done for public benefit, and if the city knew that the improvements as undertaken would be likely to cause flooding, there are questions of fact raised by the pleadings that would confer subject matter on the trial court. The court reversed and remanded the trial court’s judgment.

Ordinance Interpretation: Supermercado Teloloapan v. City of Houston, No. 14-06-00472-CV (Tex. App.—Houston (14th) December 18, 2007). This is an appeal from the trial court’s take-nothing judgment in favor of the city. In this case, the business applied for an off-premises liquor license with the Texas Alcoholic Beverage Commission and, as a requirement for the permit, requested that the city certify that the store was in a “wet” area. The city refused because the store’s property line and the property line of an adjoining apartment complex that leased space to a charter school were less than 300 feet apart in violation of a city ordinance. The business owner argued that the measurement should have been made from the area actually being leased to the school, rather than from the property line of the entire apartment complex. The court disagreed and affirmed the trial court’s judgment, holding that the city’s interpretation of “property line” in the ordinance was reasonable and did not contradict the plain language of the statute under which it was authorized. The dissenting opinion concluded that, because the business had not exhausted its administrative remedies, the district court lacked subject matter jurisdiction over the declaratory judgment action.

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-0654-GA (Zoning Protests): asks about the “[e]ligibility of particular individuals to sign a zoning change protest under Section 211.006(d)(2), Local Government Code.” The City of Austin gave notice of a proposed rezoning to those in a municipal utility district (MUD) that had been annexed for limited purposes, but did not give notice to those in a neighboring MUD that had not been annexed for any purposes. In this request, the attorney general is asked to opine on whether individuals outside of the city limits are entitled to protest a proposed rezoning of property on the edge of a city’s limits. Briefs are due on Thursday, January 31, 2008. To view the request, please go to: http://www.oag.state.tx.us/opin/opin_recent.php 

For e-mail notification: http://www.oag.state.tx.us/newspubs/subscriptions.shtml

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-0585 (Vacancies): concludes that Article XI, Section 11(b), of the Texas Constitution requires a city that has lengthened its non-civil service officers' terms of office to fill a vacancy by majority vote of the qualified voters at a special election. This constitutional requirement prevails over an inconsistent city charter provision.

Opinion No. GA-0586 (Civil Service): concludes that a local civil service commission may not adopt a rule that awards additional points to an applicant on the basis of residency within the city.

Opinion No. GA-0587 (Prop 2): concludes that neither Section 11.31(k) nor Section 26.045(f) of the Tax Code restricts the rule-making authority of the Texas Commission on Environmental Quality to only those pollution control facilities, devices, or methods associated with advanced clean energy projects.

Opinion No. GA-0588 (Criminal Forfeiture): concludes that, under article 59.03(c)(3) of the Code of Criminal Procedure, a peace officer may require a law enforcement agency to take custody of property, including money, that has been seized as contraband. The law enforcement agency's authority and responsibility to maintain custody under the article, subject to other law, continues until a court directs the property's disposition in a final judgment. The law enforcement agency has reasonable discretion to choose the means of maintaining custody of such property. However, a law enforcement agency does not have independent authority to deposit and maintain money seized as contraband in an interest-bearing account, and may do so only pursuant to court order.

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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