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

2008 TCAA South Padre Conference – Register Now! 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 topics or other information, please go to www.texascityattorneys.org. Special thanks to this year’s sponsors:

  • Abernathy, Roeder, Boyd & Joplin, P.C.
  • Banowsky & Levine, P.C.
  • Bickerstaff Heath Delgado Acosta, L.L.P.
  • Brown & Hofmeister, L.L.P.
  • Davidson & Troilo, P.C.
  • Denton, Navarro, Rocha & Bernal, P.C.
  • Doyen Sebesta, LTD, L.L.P.
  • Hermansen, McKibben, Woolsey & Villareal, L.L.P.
  • LexisNexis
  • Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C.
  • McKamie Law
  • Olson & Olson, L.L.P.
  • Ross, Banks, May, Cron & Cavin, P.C.
  • Russell & Rodriguez, L.L.P.
  • Strasburger & Price, L.L.P.
  • Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
  • Thompson & Knight, L.L.P.
  • TML Intergovernmental Risk Pool

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: 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.”

TCAA Partners with LexisNexis to Offer Low-Cost Legal Research Packages: TCAA and LexisNexis are proud to announce low-cost, online legal research solutions for TCAA members. Exclusively for city and assistant city attorneys, LexisNexis is offering three discounted online legal research solutions. Visit www.texascityattorneys.org for more information.

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

Amicus Brief Information

City of Plano Solicitation Ordinance Challenged – City Seeks Amicus Briefs, Diane Wetherbee, City Attorney, Plano: The City of Plano was sued in federal court over its solicitation ordinance. While a number of challenges were made, the most critical issue was whether the city can enforce the ordinance against a newspaper when a citizen has posted a no solicitation sign on his property.

By way of background, the city prosecutes solicitation cases. Most of these are accomplished by the owner filing an affidavit of the facts and appearing in court to prove that a sign was posted and evidence of materials left on the property. Plano’s ordinance does not distinguish commercial speech from non-commercial speech when regulating the distribution of handbills where “no solicitation” signs are posted.

The newspaper contends that the ordinance may not be enforced against it because of the non-commercial nature of its material. It claims that its First Amendment rights trump the city’s regulations. Plano does not require a permit or other preliminary approval before non-commercial materials are distributed; it only prohibits solicitation where a “no solicitation” sign is posted.

The federal court upheld Plano’s regulations and the newspaper filed a notice of appeal. Your city may be affected by the outcome of this case if your city has a solicitation ordinance similar to Plano’s. If you would like to submit an amicus brief supporting the Plano position, you will help not only Plano, but also potentially your own city’s authority to regulate unwanted handbills or other materials. Please contact me at dianew@plano.gov if you are interested in learning more and/or participating as amicus in this case.

IMLA Advocacy Service, Diane Wetherbee, City Attorney, Plano: The International Municipal Lawyers Association (IMLA) offers an advocacy service to its members, which includes serving as amicus in cases of importance. If the IMLA Advocacy Committee believes that a case has a significant impact on local government operations, and IMLA has resources available, it will participate in a state’s highest court, a federal circuit, or at the United States Supreme Court. If you have a Texas case that you believe warrants IMLA’s participation as amicus, please contact Diane Wetherbee at dianew@plano.gov or Art Pertile at apertile@olsonolson.com to have your case evaluated. In addition, there is always a need for appellate briefing attorneys. If you would like to be part of the IMLA briefing attorney program, please contact Diane or Art at the above e-mail addresses, and provide your areas of interest and past experience in appellate work.

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

Impact Fees: RQ-0658-GA; Applicability of impact fees assessed against school district property under Chapter 395, Local Government Code. This request asks the attorney general to clarify the definition of an "impact fee" in the context of S.B. 883 from the 2007 session. S.B. 883 exempts school districts from the requirement to pay impact fees. Some cities charge other types of development fees, and the request appears to argue that S.B. 883 exempts them from paying those as well. TML and TCAA argued that whether a fee is an impact fee is a fact question that cannot be resolved in the opinion process. Also, the request insinuated that a 2005 statute prohibiting an agreement between a school district and a city to use school resources for off-site improvements would now prohibit a school district from "agreeing" to pay impact fees under S.B. 883. TML and TCAA argued that no such prohibition exists, because a school district would only be agreeing to allow impact fees to be imposed upon it.

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.

Open Meetings: City of Galveston v. Nancy Saint-Paul, No. 01-06-00580-CV (Tex. App.—Houston [1st Dist.] Feb. 14, 2008). Saint-Paul filed suit against the City of Galveston, alleging that the city posted inadequate notice for an agenda item relating to a lease agreement. The trial court held for Saint-Paul, and the city appealed. The court of appeals held that the notice was sufficient, and remanded the case back to the trial court for a determination of attorney’s fees.

Annexation: City of Brownsville v. Rio Bravo Subdivision Prop. Owners Assoc., No. 13-07-554-CV (Tex. App.—Corpus Christi Feb. 14, 2008) (mem. op.). Rio Bravo Subdivision invoked disannexation procedures under Section 43.141 of Local Government Code after it was annexed by the city. To be disannexed under Section 43.141, a majority of registered voters in an area must file a petition with the city alleging that the city failed to provide services. Rio Bravo followed the procedures, and later petitioned the district court for disannexation after the city did not respond to the petition. The city filed a plea to the jurisdiction on governmental immunity grounds, which the trial court denied. The court of appeals affirmed the trial court, overruling the city’s governmental immunity arguments since a cause of action under Section 43.141 is expressly allowed by the statute.

Property Conveyance/Water Rights: City of Del Rio v. Clayton Sam Colt Hamilton Trust, No. 04-06-00782-CV (Tex. App.—San Antonio Feb. 27, 2008) (mem. op.). A landowner claimed that, due to a water rights reservation contained in a conveyance to the city, he owned the groundwater under a piece of property. The trial court held that the water rights reservation was valid and enforceable, and therefore the landowner still owned the groundwater under the property. The court of appeals affirmed the trial court’s judgment, holding that the landowner was able to sever the groundwater rights, and that the reservation of rights did not violate the prohibition against perpetuities.

Civil Service: City of Houston v. Alan Hildebrandt, No. 01-06-00936-CV (Tex. App.—Houston [1st Dist.] Feb. 28, 2008). Hildebrandt, a Houston fire fighter, pursued a grievance against the city when his sick leave and seniority status were changed to his detriment. The hearing examiner held for Hildebrandt, and ordered the city to modify Hildebrandt’s sick leave. The city appealed to the district court, which affirmed the hearing examiner’s decision. The city appealed. The court of appeals affirmed the trial court’s judgment, and also imposed a statutory penalty because the fire chief knew of the hearing examiner’s award and did not timely implement it.

Civil Service: City of Lancaster v. David Clopton, No. 05-07-00210-CV (Tex. App.—Dallas Feb. 29, 2008). Clopton filed a grievance against the city after the city terminated his employment. A hearing examiner ordered the city to reinstate him. The city appealed to the trial court, which affirmed the hearing examiner’s award. The city appealed, arguing that: (1) the examiner’s decision was outside the scope of his authority; and (2) Section 143.057 of the Local Government Code is unconstitutional. The court of appeals affirmed the trial court’s judgment, holding that Section 143.057 is constitutional and that the hearing examiner had the authority to reinstate the firefighter.

Plea to the Jurisdiction: City of Dallas v. David Jones and Veronica Jones, No. 05-07-00831-CV (Tex. App.—Dallas March 5, 2008) (mem. op.). The Joneses sued the city for inverse condemnation after they discovered 80-year-old drainage and sanitary sewer pipes on their lot. The city filed a plea to the jurisdiction, which the trial court rejected. The court of appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction because there is a genuine issue of material fact about who owns the pipes and whether the city has an easement.

Personnel: Greg Guillaume v. City of Greenville, No. 05-06-01282-CV (Tex. App.—Dallas March 6, 2008). Guillaume sued the city for violations of the Whistleblower Act and his First Amendment rights. The trial court granted a take nothing summary judgment against Guillaume. The court of appeals affirmed the trial court’s dismissal of Guillaume’s Whistleblower Act claim, but reversed the dismissal of his First Amendment claim, holding that Guillaume did not allege conduct that violated the law, but did raise a genuine issue of material fact as to whether he was terminated due to his speech regarding the city’s budget.

Sovereign Immunity: Arnoldo Dominguez, et al. v. City of Fort Worth, No. 2-06-196-CV (Tex. App.—Fort Worth March 6, 2008) (mem. op.). Dominguez and others sued the city under the Tort Claims Act after two of their family members died (allegedly due to a missing city rain gauge). The family members drowned while trying to pass through a low water crossing during a thunderstorm. The city filed a plea to the jurisdiction. The trial court granted the city’s plea to the jurisdiction. The court of appeals reversed, holding that the plaintiffs alleged sufficient facts to have a cause of action under the Tort Claims Act.

Constitutional Rights: George De Angelis v. City of El Paso, No. 06-51396 (5th Cir. (Tex.) Feb. 18, 2008) (per curiam). De Angelis sued the city and the police chief under Section 1983, alleging that the city arrested him without probable cause and searched his home without a warrant. The district court granted summary judgment for the city and the police chief. The court of appeals affirmed, holding that the chief’s choice as to who would investigate De Angelis’ case was not a violation of De Angelis’ rights, and that the arrest warrant was properly issued.


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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