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.  The seminar is sold out.  Special thanks to this year's sponsor:

• Akers & Boulware-Wells, L.L.P.

2007 South Padre Conference: 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 13-15, 2007.

To register for the conference or for more information, please go to www.texascityattorneys.org.

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.
• Doyen Sebesta, LTD, LLP
• 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

This year’s topics include:

1. City Attorney Survival Guide (June 13, 2007, from 2:00 p.m. to 4:00 p.m.)
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. Ethics

Hotel information: Due to numerous complaints about the availability of rooms at the Radisson Resort, TCAA has put a hold on reservations until Monday, March 12, 2007, at 8:00 a.m. At that time, rooms will be available on a first-come, first-serve 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.

TCAA Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas. 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. For more information, please go to www.texascityattorneys.org.

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

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. Read more.

Annexation: Village of Salado v. Lone Star Trailer II, Ltd. and Lone Star Storage Trailer, No. 03-06-00572-CV in the Third Court of Appeals in Austin. Lone Star Trailer sued the Village of Salado regarding an annexation of Lone Star's land, arguing that the Village's annexation ordinance is void under Local Government Code Section 43.025 (voluntary annexation for type B city) because the Village did not receive consent from the sole contiguous landowner. TML and TCAA argued that, under Section 43.025: (1) “contiguous area” means the entire area to be annexed, not just those tracts that directly border the city; (2) that the entire contiguous area can be annexed as a unified tract; and (3) that the plain language of the voluntary annexation statute does not require the consent of each bordering landowner.

Gas Rate Cases: City of Tyler v. CenterPoint Energy Entex, No. 06-0735 in the Texas Supreme Court. TML and TCAA argued that the City of Tyler is entitled to reimbursement for costs associated with a prudence review of CenterPoint’s rates under a purchased gas adjustment clause.

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

Takings: City of Sugar Land v. Home and Hearth Sugarland, L.P., No. 11-05-0062-CV (Tex. App.—Eastland, January 18, 2007): The city appealed the trial court’s taking award, arguing that the expert testimony used by the defendant was inadmissible and therefore constituted reversible error. The court held that the expert testimony was both relevant and reliable, and therefore admissible. In addition, the court held that the trial court’s refusal of certain jury instructions did not constitute an abuse of discretion, because the instructions were not reasonably necessary for the jury to render a proper verdict.

Employment: City of La Joya v. Sheila Ortiz, No. 13-06-401-CV (Tex. App.—Edinburg, February 1, 2007): The city filed an interlocutory appeal from the trial court’s denial of a plea to the jurisdiction, arguing that the complaint filed under the Texas Commission on Human Rights Act was filed after the statutory period expired. The court overruled this issue on the grounds that there were material questions of fact regarding when the statutory period expired raised by evidence submitted to the trial court, and therefore the city’s plea to the jurisdiction was appropriately denied. The city also argued that the Ortiz’s retaliation claim was jurisdictionally barred because it was not raised in her original charge of retaliation. The court overruled the city’s claim, citing the discrimination charge listed in the appellee’s intake questionnaire as a sufficient complaint.

Sovereign Immunity: Joseph Knute Nivens, Wilbur Dunten, and Marvin Fontenot v. City of League City, No. 01-05-00335-CV (Tex. App.—Houston [1st Dist.], January 18, 2007). Taxpayers sued the city for breach of contract for taxes allegedly paid in excess of the amount that the city was authorized to collect. The city filed a plea to the jurisdiction arguing that it was protected by sovereign immunity. On a motion for rehearing, the court withdrew its earlier opinion and held that the city was protected from suit by sovereign immunity because the taxpayers did not seek declaratory relief regarding illegal taxes or taxes paid as the result of fraud, mutual mistake of fact, or duress. The court of appeals affirmed the trial court’s order and dismissed the suit for lack of jurisdiction.

Takings: The City of San Antonio v. TPLP Office Park Props., et. al., No. 04-1130 (Tex. February 9, 2007) (per curiam). A business sued the city, claiming that the city committed a taking when it blocked access to its private driveway. The city argued that blocking the access to the business’ driveway was pursuant to its police power and that the action was not arbitrary or unreasonable. The court held that the closing of access to the driveway was a proper exercise of the city’s police power and that action was not a compensable taking.

Sovereign Immunity: Don R. Sanders v. City of Grapevine, No. 02-06-208-CV (Tex. App.—Fort Worth, February 1, 2007). Sanders sued the city for fraud, negligence, and negligent misrepresentation, and sought a declaratory judgment against the city to require the city to enforce the city’s tree preservation ordinance. The city filed a plea to the jurisdiction and argued that it was protected by governmental immunity. The trial court granted the city’s plea to the jurisdiction. The court of appeals affirmed the trial court’s grant of the plea to the jurisdiction as to the claims for damages, but held that the city was not immune from Sander’s claim for declaratory judgment regarding enforcement of the ordinance.

Sovereign Immunity: City of Del Rio v. Dwayne Felton and Gracie Felton, No. 04-06-00091-CV (Tex. App.—San Antonio, January 31, 2007) (mem. op.). The Feltons sued the city for damages to their property due to the city’s proprietary function of watering a park that adjoined the Feltons’ land. The city filed a plea to the jurisdiction arguing that their action is a governmental function and that it is not an unlawful taking or nuisance. The trial court denied the city’s plea to the jurisdiction. The court of appeals granted the city’s plea to the jurisdiction, holding that the city’s governmental immunity had not been waived, and that the Feltons did not sufficiently allege a taking.

Sovereign Immunity: City of San Antonio and San Antonio Water System Board v. Reed S. Lehman Grain, Ltd., No. 04-04-000930-CV (Tex. App.—San Antonio, January 31, 2007) (mem. op.). Lehman Grain sued the city for breach of the terms of an easement dedication, fraud, and other contractual issues based on the city’s refusal to allow the company to connect to a sewer line. The city filed a plea to the jurisdiction and the trial court partially granted the city’s plea to the jurisdiction. The court of appeals held that the city did not waive its immunity from suit, and granted the plea to the jurisdiction as to all claims.

Civil Rights: Phillip K. Poteet v. Collin J. Sullivan, Henry Lucio, Byron Lake and Town of Flower Mound, No. 02-05-338-CV (Tex. App.—Fort Worth, February 1, 2007). Poteet sued the Town of Flower Mound and various police officers under Section 1983 for civil rights violations because the officers performed a “civil standby,” which allowed Poteet’s ex-girlfriend to come to his house and take his belongings without allowing Poteet to intervene. Flower Mound argued that it did not have a policy in place that was the “moving force” of any possible civil rights violations in the civil standby. The court of appeals withdrew its November 30, 2006 opinion, held that the town was not individually liable, and held that Section 1983 does not allow for vicarious liability. The court of appeals also held that Poteet offered sufficient evidence of a lack of the officers’ qualified immunity to move past summary judgment.

Liability: Rosa Duenes v. City of Littlefield, No. 07-05-0420-CV (Tex. App.—Amarillo, January 31, 2007) Duenes filed suit against the City of Littlefield alleging that an unsecured meter box that injured her was a special defect under the Tort Claims Act, and that the city failed to exercise ordinary care to remove, fix, or warn of the condition. The city argued that the meter box was a premise defect, that there was no evidence that the condition of the meter box posed an unreasonable risk, nor was there evidence that the city was aware of the condition of the meter box prior to Duene’s injury. The court of appeals affirmed the trial court’s decision and held that the meter box was a premise defect.

Arbitration: Trial Enterprises, Inc. d/b/a Wilson Oil Co. et.al. v. City of Houston, No. 10-05-00382-CV (Tex. App.—Waco, January 17, 2007) Trial Enterprises appealed the trial court’s dismissal of their claim for want of jurisdiction because their claims were not ripe for adjudication. The court of appeals abated the appeal for the parties to present additional briefing on the effects, if any, of the Texas Supreme Court’s recent opinion in Hallco Texas, Inc. v. McMullen County, No. 02-1176 (Tex. 2006). The court of appeals also abated the appeal for mediation pending the additional briefing.

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-506 (Selling Compost): concludes that, because a home rule city's sale of compost products to persons outside the city limits does not generally appear to contravene constitutional or statutory law, and because the Legislature has not with unmistakable clarity forbidden a home rule city from selling compost products outside its city limits, a home-rule city may sell compost products outside its city limits.

Opinion No. GA-0511 (Executive Sessions): concludes that the Open Meetings Act does not permit a governmental body to admit members of the public to a closed meeting to give input regarding a public officer or employee.

Opinion No. GA-0514 (Tax Increment Financing): concludes that a city may not designate an area as a reinvestment zone unless the area is "unproductive, underdeveloped, or blighted" within the meaning of Article VIII, section 1-g(b), of the Texas Constitution, even if the area's plan of tax increment financing does not include issuance of bonds or notes.

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.

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