2006 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 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. Attorneys can earn up to 6 hours of MCLE credit, including .75 ethics hours.

While this seminar is targeted to attorneys, any city official can benefit from the information. Special thanks to this year’s sponsors:

Atkins, Peacock and Lewis, L.L.P.
Crenshaw, Dupree and Milam, L.L.P.

To register, or for more information, please go to www.texascityattorneys.org, and click on “events.”

Voter Initiative and Civil Service Position: Minella v. City of San Antonio, No. 05-50655 (5th Cir., Jan. 19, 2006). The plaintiff filed suit alleging due process violations as a result of being fired from her position as an assistant city attorney without the benefit of civil service review. On being hired, the plaintiff's position was classified as a civil service position. However, in a subsequent special election, certain licensed professional and executive job classifications, including hers, were removed from civil service coverage. The only issue on appeal was whether the voter-approved proposition was properly implemented by the city council. In affirming the judgment of the district court denying all of the plaintiff's claims, the Fifth Circuit interpreted Texas Local Government Code Section 9.005(b) to mean that a charter amendment took effect when the governing body entered an order that the amendment was adopted, which the city council did. “Any city ordinance purporting to invoke a contrary effective date is unenforceable to the extent it conflicts with the statute…A contrary rule would allow a city council to effectively ‘veto’ a voter-adopted amendment by delaying its implementation.”

Whistleblower: City of Waco v. Lopez, No. 10-04-00085-CV (Tex. App. – Waco, December 14, 2005). Robert Lopez, a former city employee, filed a whistleblower claim against the City of Waco alleging that the city terminated his employment after he reported to the city’s equal employment opportunities (EEO) officer that his supervisor violated the city’s EEO policy, which was formally adopted by the city in a resolution. The city filed a plea to the jurisdiction, contending that the Texas Commission on Human Rights Act (TCHRA) provided the exclusive remedy for Mr. Lopez’s claim and that the city’s EEO policy was not a law under the Texas Whistleblower Act. The city then filed an interlocutory appeal from an order denying its plea to the jurisdiction. The court of appeals rejected the city’s claims and held that the TCHRA did not apply in this specific case and that a city’s EEO policy is a “law” for purposes of the Texas Whistleblower Act because it is a rule adopted under a statute or ordinance.

Whistleblower: City of Houston v. Sam Levingston, D.V.M., No. 01-03-00678-CV (Tex. App. – Houston [1st Dist.], Jan. 19, 2006). Levingston, a veterinarian in the City of Houston’s Bureau of Animal Regulation and Care (BARC) (formerly known as the Rabies Control Center), was terminated after eight years of service. Levingston claimed that he was terminated because he reported instances of animal abuse to the head of BARC, while the city claimed that Levingston was terminated for inadequate performance. He appealed to the city’s civil service commission, which upheld the termination. In the trial court, the jury found that the termination was in violation of the Whistleblower Act due to Levingston’s report to BARC. The court of appeals: (1) held that Levingston had a good-faith belief that he was reporting violation of the law under the Hart test; (2) held that BARC was an appropriate law enforcement authority; and (3) discussed several issues related to measure of damages in Whistleblower claims.

Appeal from Board of Adjustment: Jerry Coyel v. City of Kennedale, No. 2-04-391-CV (Tex. App. – Fort Worth, Jan. 5, 2006). The City of Kennedale annexed land containing property that Coyel owned and assigned the land a temporary R-1 classification. The city later assigned a C-1 permanent classification. Coyel was leasing the property for use as a junkyard, which was not allowed in either district. The junkyard was to be amortized according to city ordinance after three years from the annexation. Coyel appealed the amortization to the board of adjustment, and then to the trial court, claiming that the amortization ordinance provisions did not set proper criteria for the decision. The court of appeals affirmed the city’s decision to close the junkyard by holding that the ordinance’s criteria were sufficient.

Sovereign Immunity: City of Arlington v. Charles H. Matthews, No. 2-04-317-CV (Tex. App. – Fort Worth, February 9, 2006). Note: This is a memorandum opinion. The court held that the “plead and be impleaded” provision of Section 51.075 of the Local Government Code waives sovereign immunity for breach of contract claims, but does not waiver sovereign immunity for intentional tort claims. The court noted in a footnote the current dispute on the issue that is presently before the Texas Supreme Court.

Tort Claims Act: City of Austin v. Rangel, No. 03-05-00281-CV (Tex. App. – Austin, January 20, 2006). Rangel alleged both premise and special defects under the Texas Tort Claims Act after she was injured by stepping into an uncovered water meter box on a sidewalk in Austin. The court held that the open meter box was a special defect, but since the plaintiff failed to raise a fact issue of whether the city had actual knowledge of a missing meter box lid, the district court was without subject-matter jurisdiction.

Tort Claims Act: Schwartz v. City of San Antonio, No. 04-05-00132-CV (Tex. App. – San Antonio, February 8, 2006). Rodriguez was injured by a metal fence that was energized by a fallen power line. He brought a negligence cause of action against the City of San Antonio by and through the City Public Service Board of San Antonio. After the district court granted the city’s no-evidence summary judgment, Rodriguez appealed and claimed that expert testimony is not required to prove negligence because the act was within the common experience of an ordinary layperson. Further, he claimed that expert testimony is not necessary because the doctrine of res ipsa loquitur applies. The court of appeals held that expert testimony was necessary to show that electrical services were negligently provided and that the plaintiff failed to produce the evidence necessary to link an electrified fence to negligence. The trial court's final summary judgment was affirmed.

Tort Claims Act: City of Laredo v. Saenz, No. 04-05-00188-CV (Tex. App. – San Antonio, February 8, 2006). A city-owned automobile was involved in an accident while an undercover police officer was conducting personal business and someone else was driving. The court of appeals applied the Texas Tort Claims Act, which provides for a limited waiver of sovereign immunity for the negligence of an employee operating a motor-driven vehicle while acting within the scope of his scope of employment. The court held that the appellee’s claims were barred because the employee was not on-duty, nor was he driving, at the time of the accident.

Tort Claims Act: Bechtel Corporation v. City of San Antonio, No. 04-04-00910-CV (Tex. App. – San Antonio, February 1, 2006). Appellants released six million gallons of water when they hit a pressurized water main pipeline while conducting directional drilling in downtown San Antonio. The related flooding damaged city infrastructure and the basement of the Bexar County Courthouse. Bechtel and a subcontractor appealed the trial court judgment finding them liable and awarding damages to the city. Appellants made eight claims, including a claim that their request for markings of the location of pipes fulfilled the obligations in Chapter 251 of the Texas Utilities Code, and thus protected them from liability. The court of appeals did not find merit in any of the claims and affirmed the judgment of the trial court for the city.

Opinion No. GA - 394: Concludes that a substitute teacher may receive compensation for serving as a member of a city council.

Special Opinion Request Note: Attorney general opinion request RQ-0432-GA asks whether a city is authorized to lease its oil, gas, and mineral interests according to the terms of the city, or whether the lease of such interests must be competitively bid. If your city is interested in filing comments, the deadline is March 3, 2006.

Sovereign Immunity: Sipes v. City of Grapevine, No. 04-0933 in the Texas Supreme Court. Amici argued that a city’s implementation of the decision to install a traffic signal was a discretionary act. Therefore, Section 101.060(a)(1) of the Texas Civil Practices and Remedies Code applied, granting the city sovereign immunity against tort claims during the period between the decision to install the traffic signal and the installation of the traffic signal. On August 31, 2004, the court decided against the city and remanded the case to be decided pursuant to Section 101.060(a)(2). The city filed a petition for review with the Texas Supreme Court on October 15, 2004. Petition for review was granted on January 20, 2006. Oral argument is set for February 15, 2006.

Open Meetings Act: Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, Gregg Abbott, Texas Attorney General, and the State of Texas, C.A. No. P-05-CV-75 in the United States District Court for the Western District of Texas. TCAA argued that, while city attorneys are committed to openness in government, the criminal conspiracy provision of the Texas Open Meetings Act is written such that it is almost impossible to properly advise city officials. As such, city attorneys seek more guidance as to how to advise city officials in regards to that provision. The suit was filed on September 26, 2005, and a motion to dismiss is pending.

New TML Attorney: The Texas Municipal League is pleased to introduce the newest member of its legal staff, Lauren Ford Crawford. Lauren graduated from Texas Tech University in 2002 with a degree in history and Spanish, summa cum laude with honors. She received her law degree in 2005 from The University of Texas School of Law in Austin, Texas, where she was active in mock trial, student recruitment, and the annual law follies. Lauren joined TML in the summer of 2004 as a law clerk, and became a permanent member of the legal department as Legal Counsel in January 2006.

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.

Special Padre Conference Note: The TCAA Board has voted to create a two-hour, Wednesday afternoon MCLE session targeted to new and/or small town attorneys. Of course, anyone may – and is encouraged to – attend. That session will include a session on open meetings and the First Amendment, “top ten legal questions received by the TML Legal Department,” and a Q&A session with TCAA Board members and TML staff. It will be held on Wednesday, June 14, 2006, from 2:30 p.m. – 4:30 p.m. Please join us!

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 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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