The TCAA Fall Seminar in conjunction with the TML Annual Conference will be held on October 26, 2006, in Austin. The TCAA Board will pick speakers for that agenda at its June 14, 2006, Board meeting.

If you are interested in presenting, please send your submission to Scott Houston by April 28, 2006, at legalgovt@tml.org

2006 South Padre Conference: The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 14-16, 2006. Registration information is available by clicking on the “events” link at www.texascityattorneys.org.

Special thanks to this year’s sponsors:

• Bickerstaff Heath Pollan Caroom, L.L.C.
• Brown & Hofmeister, L.L.P.
• Davidson & Troilo, P.C.
• Denton, Navarro, Rocha & Bernal, P.C.
• Donato, Minx & Brown, P.C.
• Johnson Radcliffe Petrov & Bobbitt P.L.L.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.
• Strasburger and Price, L.L.P.
• Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
• TML Intergovernmental Risk Pool

Special Padre Conference Note – Accommodations: It appears that the Radisson Resort (the conference hotel: 800-292-7704) has very limited space available. Some attendees reserve rooms for the conference up to one year in advance, and that practice has limited TCAA’s ability to control the room block. That issue is being addressed for the 2007 conference. If you are unable to secure a room at the Radisson for this year’s conference, please take advantage of the following options:

1. The La Copa Beachfront Resort (1-866-452-2672) is within walking distance of the Radisson, and is offering a special rate of $99 to TCAA members.
2. South Padre has many other excellent accommodations, which you can view by going to: http://www.sopadre.com/findLodging.asp

We apologize for any inconvenience.

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!

Zoning: City of White Settlement v. Superwash, Inc., No. 04-0340 (Tex. Sup. Ct., February 27, 2006). A city official mistakenly approved Superwash’s site plan, which did not contain a fence along a property line. Neighbors brought the mistake to the city’s attention, and the city required Superwash to construct the fence. The court concluded that, under those circumstances, the city cannot be estopped from enforcing its ordinance.

Tort Claims Act: Walter Madern v. City of Pasadena, No. 01-05-00337-CV (Tex. App. – Houston [1st], March 9, 2006). Madern stepped onto a manhole cover, which slipped, causing his right leg to fall into the manhole. He sued the city, alleging that it was negligent in creating the condition that caused his injuries, specifically alleging that governmental immunity from suit and liability was waived under the Texas Tort Claims Act (TTCA) because the manhole constituted a special defect. The court held that the TTCA does not waive the city’s immunity from suit for Madern’s negligence claim, and remanded the issue of a declaratory judgment on whether the definition of a “special defect” is unconstitutionally vague.

Employment: Davis v. City of Grapevine, No. 02-05-145-CV (Tex. App. – Fort Worth, March 9, 2006). Davis was employed as a firefighter by the city when he was diagnosed with multiple sclerosis. Davis’ doctor told the city that he would not consistently be able to climb ladders, and he could not consistently be required to drive emergency vehicles. He asserted that he was forced to resign from the city, alleging discrimination due to his disability and age. He filed suit, requesting relief under the Texas Commission on Human Rights Act. The court remanded the issue of whether the city failed to reasonably accommodate him and whether the city had constructively discharged him.

Health Benefits: Paul Nunn v. City of Vernon Employee Benefit Trust, No. 07-05-0212-CV (Tex. App. – Amarillo, February 27, 2006). Note: This is a memorandum opinion. Paul Nunn, an employee of the City of Vernon Fire Department, was injured while working at an off-duty job. Because the off-duty employer did not have workers’ compensation insurance, Nunn sought medical coverage for his expenses under his health plan with the city, which was administered by the City of Vernon Employee Benefit Trust (Trust). His claim for benefits was denied by the Trust based on language in the benefit plan that states the plan excludes workers compensation expenses. Nunn sought a declaratory judgment that his claim was covered by the health plan. The trial court granted the Trust’s motion for summary judgment. The appeals court reversed that decision, stating that a genuine issue of material fact exists with regards to the meaning of what is considered a workers’ compensation expense.

Municipal Fees: City of Dallas v. Jim Lowenberg, et al., No. 11-03-00061-CV (Tex. App. – Eastland, March 1, 2006). This opinion involved a class action remanded from the Texas Supreme Court, and discussed the constitutionality of a “fire safety registration fee” assessed against all owners and operators of commercial buildings in the city. The court held that the fee was a revenue-generating device that created no special benefit or regulation for the businesses charged, and was thus an unconstitutional occupation tax. The issue of repayment of the fees was remanded to the trial court to determine whether the payment by the business owners was made under duress.

Employment: Margarita R. Johnson v. City of Houston, No. 14-04-00493-CV (Tex. App. – Houston [14th], February 28, 2006): Discusses issues of delayed citation and tolling, and issues of summary judgment by the trial court on the issue of retaliatory firing under Texas Commission on Human Rights Act. The city argued that the appellant was barred by the limitations period. The court disagreed, holding that as the delay in citation to the city was not the fault of the appellant, she was not barred by the limitations period. The court also held that there was sufficient evidence to raise a fact issue regarding an allegedly retaliatory termination. Thus, the trial court's summary judgment in favor of the city had been improper.

Electric Utilities: Office of Public Utility Counsel and Cities of Abilene, San Angelo and Vernon v. Public Utility Commision, Nos. 03-03-00461-CV & 03-03-00462-CV (Tex. App. – Austin, February 10, 2006). The court discussed the process of approving the fuel factor component of the price to beat, whether the expenses sought by Central Power and Light Company and West Texas Utility Company were reasonable estimates of “eligible” projected fuel expenses, and whether procedural irregularities tainted the fuel factor determinations.

Water Service: Bexar Metropolitan Water District v. TCEQ, City of Bulverde and Guadalupe-Blanco River Authority, No. 03-04-00574-CV (Tex. App. – Austin, February 10, 2006). Bexar Metropolitan Water District challenged the Texas Commission on Environmental Quality’s (TCEQ) recognition of a city obtaining capacity to provide water service through contracts and interlocal agreements with a river authority. The court held that the City of Bulverde originally did not possess the capacity to provide continuous and adequate service, but that the TCEQ acted within its authority when it granted a certificate of public convenience and necessity to Bulverde after the city obtained the capacity for adequate water service through a contract with the Guadalupe River Authority.

Zoning/Takings: City of San Antonio v. El Dorado Amusement Company, No. 04-04-00638-CV (Tex. App. – San Antonio, February 15, 2006). The San Antonio City Council rezoned the district where a bar was located to disallow alcohol sales, rendering the bar unable to serve alcohol. The bar sued the city, asserting a takings claim and a claim to a right to obtain a non-conforming use permit. The court reversed the trial court award of attorneys’ fees and lost profits, remanded the case to the trial court to calculate prejudgment interest, and affirmed the finding of a regulatory taking.

Water Rights: Edwards Aquifer Authority v. Peavy Ranch, No. 04-05-00412-CV (Tex. App. – San Antonio, February 22, 2006). The Edwards Aquifer Authority (EAA) denied Peavy Ranch’s untimely application for a water permit. Peavy Ranch claimed a vested property right in the groundwater under its property and a right to individualized notice regarding the EAA permit deadline. The district court did not address the nature of ownership of groundwater, and upheld the EAA permit decision after finding Peavy Ranch had received all constitutionally required notice.

Sovereign Immunity: Dequire v. City of Dallas, No. 05-04-01865-CV (Tex. App. - Dallas, March 3, 2006). Dequire sued the City of Dallas for breach of contract and a related declaratory judgment. While the trial court granted the city’s plea to the jurisdiction based on governmental immunity, the appeals court found the city waived its immunity from suit when the city made a prayer for attorney’s fees.

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

Opinion No. GA-0408: concludes that Section 351.0025(b) of the Tax Code does not prohibit a city with a population of fewer than 35,000 from adopting and imposing a hotel occupancy tax in its extraterritorial jurisdiction as long as the combined rate of state, county, and municipal taxes did not exceed 15 percent at the time the city imposed its tax.

Special Opinion Request Note: Attorney general opinion request RQ-0451-GA asks various questions about the new conflicts disclosure requirement for local government officials and vendors (H.B. 914, which creates Local Government Code Chapter 176). If your city is interested in filing comments, more power to you, and the deadline is March 31, 2006.

Eminent Domain Procedures: City of Austin v. Harry M. Whittington, et al., No. 05-0912 in the Texas Supreme Court. Amici argued that the procedures for eminent domain found in Chapter 21 of the Texas Property Code do not require that a “necessity finding” be noted in an eminent domain resolution adopted by the council. In addition, amici argued that the additional “necessity” determination required by the appeals court is vague and needs clarification from the Court. A motion for rehearing was filed on February 13, 2006. A decision is pending.

Gas Ratemaking: Alliance of CenterPoint Cities v. CenterPoint Energy, Texas Railroad Commission Docket No. 9630. The issue in this docket arose from improper notice to the public of a proposed rate increase. The Gas Utilities Regulatory Act (GURA) mandates notice to the public of any proposed rate increase. CenterPoint Energy argued that the refusal of the Alliance of CenterPoint Cities (ACM cities) to approve or deny the rate increase created a delay that led to an enactment of the increase by operation of law. The ACM cities and TML (as amicus curiae) disagreed, and argued that without proper notice, the ACM cities cannot make an appealable final decision. Thus, the Railroad Commission (RRC) does not have jurisdiction to rule on the rates in question. On March 14, 2006, the RRC voted to defer the decision on jurisdiction pending receipt of further information on the notice issue. A decision is expected in early April.

Please e-mail any news of interest to city attorneys to Scott Houston at legalgovt@tml.org.

2005 Riley Fletcher Basic Municipal Law Seminar: The Seventh Annual Riley Fletcher Basic Municipal Law Seminar in Lubbock was a great success with over 80 participants! Special thanks to the City of Lubbock, Texas Tech University, all of our volunteer speakers, and this year’s sponsors:

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
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Austin, Texas 78754
www.texascityattorneys.org