2007 Riley Fletcher Basic Municipal Law Seminar to be held in Austin:  The Eighth Annual Riley Fletcher Basic Municipal Law Seminar will be held in Austin on February 23, 2007.  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.  Special thanks to this year's sponsor.

• Akers & Boulware-Wells, L.L.P.

The seminar is great for new city attorneys or those wanting a refresher in the basics!  Seating is limited to 60 attendees, so don’t wait!  Please go to www.texascityattorneys.org for more information or to register.

2007 South Padre Conference: Save the dates! The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 13-15, 2007.

This year’s topics include:

1. City Attorney Survival Guide
2. Recent Attorney General Opinions, State Cases, and Federal Cases
3. Secondary Impacts of Sexually Oriented Businesses
4. Tasers and Sovereign Immunity
5. Critical Infrastructure and the Public Information Act
6. Civil Service Update
7. Section 1983 Update
8. E-Discovery
9. Legislative Update
10. Immigration Issues for City Attorneys
11. Fair Housing Act Challenges to City Development Standards
12. Land Use Update – Rough Proportionality and Who Pays for Infrastructure
13. Regulation of Mobile Billboards
14. Ethics

Special thanks to this year’s sponsors:

• Banowsky & Levine, P.C.
• Bickerstaff Heath Pollan Caroom, L.L.P.
• Brown & Hofmeister, L.L.P.
• Davidson & Troilo, P.C.
• Denton, Navarro, Rocha & Bernal, P.C.
• Law Offices of Wm. M. McKamie, P.C.
• Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C.
• Olson & Olson, L.L.P.
• Ross, Banks, May, Cron & Cavin, P.C.
• Russell & Rodriguez, LLP
• Strasburger & Price, L.L.P.
• Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
• TML Intergovernmental Risk Pool

Registration and hotel booking information will be available soon.

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 awards programs, including the municipal certification program, at www.texascityattorneys.org. In particular, nominations are being accepted for the Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney, which will be awarded in South Padre this June. Please take a moment to nominate an assistant city attorney who has made significant achievements.

Eightieth Legislative Session Begins: Keep current by reviewing the weekly edition of the Texas Municipal League’s Legislative Update, which includes a short summary of most city-related legislation that is filed, as well as articles and other updates on items of interest. View the update at www.tml.org by clicking on “Legislative.”

Prayer at City Council Meetings, Lauren Ford Crawford, Legal Counsel, Texas Municipal League: Many Texas cities and other governmental entities open their meetings with a brief prayer. Is this a violation of the doctrine of the separation of church and state? Not usually. However, a recent decision by the Fifth Circuit Court of Appeals may cast some doubt over the practice. The following is a brief summary of the law relating to prayer at meetings of governmental bodies. Read more.

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 argue 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.

Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Contractual Sovereign Immunity: City of Dallas v. Kenneth E. Albert; City of Dallas v. David L. Barber; City of Dallas v. Anthony Arredondo; City of Dallas v. Kevin Michael Willis, Nos. 05-03-01297-CV—05-03-01300-CV (Tex. App.—Dallas, December 21, 2006); City of Dallas v. David S. Martin; City of Dallas v. George G. Parker, Nos. 05-03-01310-CV; 05-03-01334-CV (Tex. App.—Dallas, December 21, 2006). City police officers and fire fighters sued the city regarding their salaries, arguing that a pay grade ordinance was not being fulfilled by the city. The city argued that once it had dropped its counterclaims for overpayment of salaries under Reata Construction Corp. v. City of Dallas, the trial court lost jurisdiction because of the city’s sovereign immunity. 197 S.W.3d 371 (Tex. 2006). In two almost identical opinions in Albert and Martin, the court of appeals agreed but held that new Sections 271.151 – 271.169 in the Local Government Code waived immunity in contract cases and retroactively applied. The court of appeals also held that the trial court had jurisdiction under the Declaratory Judgment Act to determine the city’s responsibilities under the pay grade ordinance. The case was remanded to the trial court for further proceedings.

Condemnation: In re JDN Real Estate-McKinney L.P.; In re City of McKinney, No. 05-06-01314-CV; No. 05-06-01315-CV (Tex. App.—Dallas, December 28, 2006). A business whose land was being condemned filed a petition for writ of mandamus to require the trial court to reverse its judgment allowing the city immediate possession of the property since the metes and bounds description in the city’s live petition was incorrect. The court of appeals denied the petition for mandamus, holding that even if the trial court abused its discretion in granting immediate possession to the city, the business had an adequate remedy under Texas Property Code Section 21.044(a), which addresses nonconformities in condemnation proceedings.

Discovery: In re JDN Real Estate-McKinney L.P.; In re City of McKinney, No. 05-06-01314-CV; No. 05-06-01315-CV (Tex. App.—Dallas, December 28, 2006). The city filed a petition for writ of mandamus to overturn the trial court’s judgment that certain of its documents were discoverable. JDN argued in its petition for writ of mandamus that some of the trial court’s rulings on privileged documents should be overturned. The court of appeals held that the trial court was correct in holding that there was not undue delay, voluntary disclosure to a third party, offensive use, or fraud in the documents by the city that would have made all of the city’s documents discoverable. In addition, the court held that certain documents were discoverable because they did not contain anything confidential or because they were produced by a non-legal employee. Finally, the court of appeals determined that other documents were privileged because they contained confidential information (including legal strategy) or were part of a group of documents that was privileged.

Standing: Richard Schecter v. Wildwood Developers, L.L.C., City of El Paso, et. al., No. 08-05-00398-CV (Tex. App.—El Paso, December 21, 2006). A citizen filed suit against the city seeking to stop a subdivision development that had been approved by the city. The trial court held that the citizen did not have standing to bring suit on the city’s actions regarding the development. The court of appeals affirmed, holding that the citizen had no standing to bring suit because his rights, status, or legal relationship were not related to the development.

Jurisdiction: The City of La Marque v. Toyya Braskey d/b/a The Momma Cat, No. 01-04-01224-CV (Tex. App.—Houston [1st Dist.], January 4, 2007). The city charged a business owner in municipal court for violations of an ordinance regulating kennels. In response, the business owner filed suit in civil district court against the city seeking a declaratory judgment that: (1) the ordinance regulating kennels did not apply to his business; (2) the ordinance enforcement against him should be enjoined; and (3) he should be awarded attorney’s fees. The trial court ruled in favor of the business owner. The court of appeals held that the business owner did not have a vested constitutional property right to use his property as a kennel and therefore only the court where the criminal prosecution was being held (municipal court) had jurisdiction to determine the ordinance’s validity. The court of appeals held that the district court did not have jurisdiction, dismissed the case, and vacated the trial court’s judgment in favor of the business owner.

Appellate Procedure: City of McAllen v. Manuel Trigo, Jr. and Lydia Cantu, No. 13-04-344-CV (Tex. App.—Edinburg, December 14, 2006). The city appealed a trial court judgment prohibiting it from interfering with appellees’ use of their premises for "commercial purposes." Between the original trial and the beginning of the appeals process, several exhibits were lost by the trial court. Because of the missing evidence, appellees moved for either abatement of the suit or reversal and remand of the case to the trial court for a new trial. It was undisputed that the city requested the information from the trial court in a timely manner, was not at fault in the loss of the records, and that the parties could not replace some of the exhibits. The district court also found that some of the missing documents were necessary to the disposition of the appeal. Thus, under Texas Rule of Appellate Procedure 34.6(f), the court dismissed the motion to abate as moot and reversed and remanded the matter for a new trial.

Waiver of Immunity: City of Weslaco v. Carl L. Borne, et al., No. 13-05-126-CV (Tex. App.—Edinburg, December 14, 2006). The city appealed a trial court denial of the its motion to dismiss the case for lack of jurisdiction. Borne argued that the city waived its governmental immunity to suit when city representatives, during depositions, stated that operating a mobile home park was not a city function. The court disagreed, arguing that if – under Tooke v. City of Mexia (197 S.W.3d 325, 332 (Tex. 2006)) – a city has only “a limited and questionable ability” to waive its governmental immunity with a charter provision or ordinance, then the city’s representative would have an even less effective ability to waive immunity through informal speech or writings. The court reversed the trial court’s order denying the city’s plea to the jurisdiction, and rendered judgment dismissing the Borne’s claims.

Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion No. GA-492 (Employee Bonuses): concludes that a county’s incentive plan for certain county employees does not contravene Article III, Section 53, of the Texas Constitution, unless employees are provided bonuses for work rendered before the plan's adoption. The fact that the proposed plan stipulates that bonus awards are within the Commissioners Court's discretion does not itself render the plan unconstitutional.

Opinion No. GA-496 (School District Development): concludes 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.

Opinion No. GA-497 (Groundwater Regulation): concludes that the Edwards Aquifer Authority is not authorized to reduce the withdrawal rights of certain irrigation users and averagers, nor has it authorized the authority to issue interruptible junior withdrawal rights.

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.

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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www.texascityattorneys.org