(Volume 3, Issue 2 – February 2008)
“Your Source for Information About the Texas City Attorneys Association”
News, and Updates
There’s still time to register 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. Go to www.texascityattorneys.org for information.
2008 TCAA South Padre Conference – Register Now! Come join us for the best of both worlds: Earn MCLE credit while at the beach! The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 11-13, 2008. To register for the conference or for more information, please go to www.texascityattorneys.org. Special thanks to this year’s sponsors:
This year’s topics include: (1) special guest: the Honorable Dale Wainwright, Supreme Court of Texas; (2) immigration issues; (3) recent attorney general opinions, state cases, and federal cases; (4) red light cameras; (5) elections issues; (6) code enforcement issues; (7) dealing with municipal utility districts; (8) police officer separation issues; (9) understanding water resource planning; (10) employment law traps; (11) contractual immunity; (12) real-world ethics issues; (13) hiring the right attorney for your office or firm; and (14) the value of state league and IMLA membership.
2008 South Padre Hotel information: TCAA has put a hold on reservations at the Radisson Resort until Friday, March 28, 2008, at 8:00 a.m. At that time, rooms will be available on a first-come, first-served basis. To make your reservations, please call the Radisson Resort directly at 800-292-7704 or 956-761-6511. (Refer to the “TCAA Summer Conference room block” to receive the conference rate.) For other hotels in South Padre Island, please go to www.sopadre.com.
Galen Sparks Award Nominations: Galen Sparks served as an assistant city attorney and dedicated public servant for the City of Dallas for over 27 years. He distinguished himself in a variety of areas of municipal law and generously shared his time and expertise in a way that substantially enhanced the professionalism of his fellow municipal lawyers. The TCAA Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney is intended to recognize and honor a current or former assistant city attorney for significant and distinguished career achievements in the field of municipal law. The recipient of this award will be honored at the TCAA Semi-Annual Meeting in South Padre. In addition, TCAA will waive the recipient’s seminar registration fee and reimburse the recipient up to $500 for transportation and lodging for the meeting. The deadline to nominate for the 2008 summer meeting is April 4, 2008. Nomination forms are available on www.texascityattorneys.org, under “Awards/Certifications.”
Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.
Municipal Annexation: Is It Really That Complicated?Scott Houston, Director of Legal Services, Texas Municipal League: Annexation, specifically unilateral annexation, is to say the least one of the most debated issues in municipal law. Rarely a week goes by that annexation battles do not show up in newspaper headlines across the state. Interesting, however, is the fact that from the enactment of the Municipal Annexation Act in 1963 until very recently, the legislature rarely acted to restrict city authority in this area. Read more.
TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed
Civil Service: City of Pasadena v. Richard Smith, No. 06-0948, on Motion for Rehearing in the Texas Supreme Court. TML and TCAA, on behalf of the City of Pasadena, urged the court to grant review to determine the appropriate standard of review in a Section 143.057(j) appeal from a hearing examiner’s decision. The brief was filed on February 8, 2008.
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.
Police Employment: Hancock v. Barker, No. 07-40794 (5th Cir. Jan. 28, 2008) (per curiam). Barker, Bay City’s police chief, initiated an administrative investigation against Officer Hancock after receiving information from the district attorney that Hancock’s testimony in an assault case was in conflict with another officer’s testimony. After questioning Hancock and the other officer involved, Baker requested that the Texas Department of Public Safety (DPS) conduct a polygraph examination. The DPS requested that Hancock waive her Miranda rights before the examination, and informed her that the results of the examination would be provided to Barker and to the district attorney’s office. Hancock refused to waive her rights, and the DPS refused to conduct the examination. As a result, Barker fired her for failing to take the polygraph examination. Hancock filed suit under Section 1983 as well as Section 614.063 of the Texas Government Code (which governs the administration of polygraph examinations). Barker moved for summary judgment on the grounds that he was entitled to qualified immunity on the Section 1983 claim, and argued that official immunity protects him from liability for failure to follow the requirements of Section 614.063. The district court denied his motion, and Barker appealed. The Fifth Circuit affirmed the district court’s ruling, holding that Barker’s dismissal of Hancock for her refusal to waive her Fifth Amendment rights was a violation of clearly established law. The court also held that Barker failed to prove that statutory preconditions under §614.063 for the dismissal of peace officers for refusing to take a polygraph were discretionary acts, and failed to prove that his actions were in good faith.
Telecommunications: Texas Cable & Telecommunications Assoc. v. Paul Hudson, et al., No. 06-51514 (5th Cir. Feb. 7, 2008). The Texas Cable and Telecommunications Association (TCTA) sued the Public Utility Commission in federal district court, challenging the state’s new franchise statute that provides for a state franchise system rather than a local franchise system. The TCTA argued that the statue was unconstitutional because it discriminates against preexisting cable companies in favor of new cable companies and because it violates the Supremacy Clause. The district court dismissed TCTA’s case, holding that TCTA lacked standing because it had no discernable injury and because the case was not yet ripe for litigation. The court of appeals reversed the trial court’s dismissal, holding that TCTA has standing because it showed possible economic and constitutional injury due to the statute’s different effects on new and existing cable companies, and that the case was ripe for adjudication. The court of appeals remanded the case to the trial court for determination on the merits.
Civil Rights: Regina Kelley v. City of Wake Village, No. 07-40227 (5th Cir. Feb. 1, 2008) (per curiam). Kelley sued the city and the police chief in federal district court for equal protection violations, arguing that the police failed to follow state law and departmental policy regarding domestic violence victims. The city’s motion for summary judgment was granted by the trial court. The court of appeals held that the city was not liable: (1) for a Section 1983 claim because Kelley did not prove that the police chief was a policymaker who made a city policy that was discriminatory against women in domestic violence cases; or (2) for an equal protection claim because Kelley did not show that discrimination against women was a motivating factor in the lack of police protection in the domestic violence case. The court of appeals affirmed the district court’s dismissal of Kelley’s case.
Utilities: L.D. Jones v. City of Palestine, No. 07-40465 (5th Cir. Jan. 16, 2008) (per curiam). Jones sued the City of Palestine based on a perceived discrepancy between the water rates the city charged and those allowed by the city’s water ordinance. The ordinance allegedly indicated that water should be charged at a flat rate, but the city actually charges by volume. The city argued that the ordinance is ambiguous and that reviewing all of the other evidence that goes with the water ordinance shows the city’s intent to charge by volume. This evidence includes the city’s billing practices, the city’s customer service policy, the city’s budget, and its financial needs for bond payments. The trial court granted the city’s motion for summary judgment. The court of appeals affirmed, holding that the extrinsic evidence shows that the city appropriately charged for its water by volume.
Court Fines: State of Texas v. James Crook, No. PD-0001-07 (Tex. Crim. App.— Feb. 6, 2008). In this case, Crook was charged with thirteen counts of felonious conduct (barratry). The jury suggested that he pay $10,000 x 13 ($130,000), but the district court ordered the payment of the fines to run concurrently (i.e., Crook would only have to pay $10,000). The Court of Criminal Appeals upheld the trial court’s decision based on Section 3.03 of the Texas Penal Code, which requires that “sentences run concurrently” when “the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action.” Note: The general counsel of the Texas Municipal Courts Education Center has opined on the effect of the Crook decision on municipal court prosecutions. To view his memo, please go to: http://www.tmcec.com/tmcec/public/files/File/About%20Us/State%20v%20Crook.pdf
Annexation: In re City of Cresson, No. 2-07-446-CV (Tex. App.—Fort Worth Feb. 8, 2008). The City of Cresson and the City of Granbury adopted competing ordinances regarding land near both cities. While Granbury was in the process of annexing the land, Cresson brought the land into its extraterritorial jurisdiction at the request of the landowners. Cresson sued Granbury, and the trial court held for Granbury. The court of appeals then reversed the trial court’s judgment in favor of Granbury, and rendered summary judgment for Cresson. While Granbury’s motion for rehearing was in the court of appeals, Granbury continued to assert jurisdiction over the land in question to protect its rights relative to existing businesses should its ordinances eventually be held valid. Cresson filed a petition for writ of injunction, and the court of appeals enjoined Granbury from further enforcement of its ordinances within the disputed land, holding that the trial court’s judgment in favor of Granbury had been superseded.
Utilities: The State of Texas, Cities of Dickinson, Friendswood, La Marque, League City, Lewisville, and Texas v. Public Utility Commission, No. 03-06-00503-CV (Tex. App.—Austin Jan. 25, 2008). The Public Utility Regulatory Act allows an electric utility to recover all of its stranded costs (i.e., prudently incurred expenses made by a utility in a regulated environment that are unrecoverable in a competitive market). The issues in this case were: (1) whether the sale of a TNMP generation plant was a valid, competitive transaction; (2) whether TNMP mitigated its stranded costs; (3) what were the disallowances in the stranded costs; and (4) what was the interest rate on TNMP’s final fuel balance. The Public Utility Commission (PUC) determined that the sale of the plant was not bona fide, that TNMP did not mitigate its stranded costs, and made determinations about the interest based on the recent Supreme Court of Texas opinion CenterPoint Energy v. Public Utility Commission, 143 S.W.3d 81 (Tex. 2004). TNMP’s stranded costs were finalized by the PUC and the trial court affirmed the PUC’s order. The court of appeals affirmed the PUC’s order, holding that the PUC followed the plain language of the statute.
Zoning: Sarah Horton v. City of Smithville, No. 03-07-00174-CV (Tex. App.—Austin Jan. 25, 2008) (mem. op.). Horton sued the City of Smithville because the city allowed her neighbor to operate a live music venue. Horton sued for nuisance, civil conspiracy, and an unconstitutional taking, arguing that the city’s zoning ordinance did not allow for such a business. The city filed a plea to the jurisdiction, which the trial court granted. The court of appeals affirmed the city’s plea to the jurisdiction because Horton did not follow the procedures of Section 211.009 of the Local Government Code, and therefore did not exhaust her administrative remedies before suing the city.
Annexation: City of Rockwall v. Vester T. Hughes, No. 05-0126 (Tex. Jan. 25, 2008). The City of Rockwall proposed to annex Mr. Hughes’s property under the “sparsely populated” annexation plan exemption. Hughes requested that the property be placed in the annexation plan, and the city denied the request. Hughes then requested that the city arbitrate under Texas Local Government Code Section 43.052, but the city refused. Hughes sued the city to compel arbitration, but the trial court refused to compel arbitration. The court of appeals reversed, holding that the city was required to arbitrate. The Supreme Court of Texas concluded that the plain language of the statute controls, and that so long as a city considers and rejects a request for arbitration, the city has complied. The available remedy for a landowner is limited to a quo warranto proceeding.
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-0664-GA (Density Regulations in the ETJ): asks about the authority of a city or a county to “regulate density/zone through platting” in the extraterritorial jurisdiction or unincorporated areas. Briefs are due by Monday, February 25, 2008. The actual request and accompanying brief are available at: http://www.oag.state.tx.us/opinions/requests_ga/RQ0664GA.pdf
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-0595 (Nepotism): concludes that the charter of the City of Pharr, a home rule city, delegates to the city manager the power to appoint individuals to positions below the department head level without consulting the city commission. If the charter provides the city manager with full and final appointing authority to appoint individuals to such positions and reserves no authority for the city commission in those appointments, the city manager may appoint an individual who is related to a city commissioner, but not related to the city manager, without contravening the nepotism statute (Government Code Chapter 573).
Opinion No. GA-0597 (Dual Office Holding/Conflict of Interest): concludes that, under Local Government Code Section 171.009, the mayor of the Village of Wimberley and a member of the Village of Wimberley City Council may serve simultaneously on the Wimberley Water Supply Corporation's board of directors only if they receive no compensation or other remuneration from the water supply corporation.
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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