TCAA NEWS
(Volume 5, Issue 3—March 2010)
"Your Source for Information About the Texas City Attorneys Association"
News and Updates

TCAA's Galen Sparks Awards for Outstanding Public Service by an Assistant City Attorney: Galen Sparks served as an assistant city attorney and dedicated public servant for the City of Dallas for more than 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. These awards are intended to recognize and honor a current or former assistant city attorney for significant and distinguished career achievements in the field of municipal law. [Note: In 2009, the TCAA Board voted to grant two awards each year, one for an assistant city attorney from Texas' eight largest cities (Arlington, Austin, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, or San Antonio) and one to an assistant city attorney from the remaining cities.]

The recipients of this award will be honored at the TCAA Summer Meeting in South Padre. In addition, TCAA will waive the recipients' seminar registration fees and reimburse the recipients up to $500 for transportation and lodging for the meeting. The deadline to apply to receive the award at the 2010 Summer Meeting in South Padre on June 9-11 is April 2, 2010.

For more information on these awards, please go to www.texascityattorneys.org.

Join us for the TCAA South Padre Conference to be held on June 9-11, 2010, at the Isla Grand Beach Resort! This year's theme is "Ex Mari Veritas" (From the Sea, Truth). Earn up to 10 hours of MCLE credit, including 2 ethics hours. Topics include:

  • Ethics—Lessons from 40 Years as City Attorney
  • Seeking Effective Amicus Support
  • The Legislative Process—How It Really Works
  • Municipal Court: The Basics
  • Personnel: The Disciplinary Action Process
  • Recent Federal and State Cases of Interest to Cities
  • Bankruptcy: What Every City Attorney Should Know
  • Nuisances: Code Enforcement
  • Ethics: The City Attorney as "Investigator"
  • The Home Rule Charter Review Process
  • Recent Developments at the PUC, RRC, and TWDB
  • Civil Service Update
  • General Ethics
  • Contractor Default/Surety Performance
  • Cell Tower Siting Update
  • Selling Municipal Property for Economic Development
  • The Impact of Social Networking on Cities

Special Thanks to this Year's Sponsors:

Abernathy, Roeder, Boyd & Joplin, P.C.
Banowsky & Levine, P.C.
Bickerstaff Heath Delgado Acosta, LLP
Brown & Hofmeister, L.L.P.
Davidson & Troilo, P.C.
Denton, Navarro, Rocha and Bernal, P.C.
McKibben, Woolsey & Villareal, L.L.P.
LexisNexis
Lloyd, Gosselink, Rochelle & Townsend, P.C.
McKamie Krueger, LLP
Messer, Campbell & Brady, LLP
Municipal Code Corporation
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
Olson & Olson, L.L.P.
Potter Minton, P.C.
Ross, Banks, May, Cron & Cavin, P.C.
Russell & Rodriguez, LLP
Shotts, Pardue Trevino & Guevara, LLP
Strasburger & Price, L.L.P.
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
TMLIRP

Special Note on Seminar Materials: TCAA no longer provides binders for speaker papers or printed materials of any kind. Instead, TCAA puts all speaker papers on the TCAA Web site under "speaker papers" for attendees to download in advance, if they so desire. No written materials are provided at the seminar location.

For hotel or other information, or to register, please go to www.texascityattorneys.org.

Sign Up for TCEQ E-mail Updates! If you haven't visited the Texas Commission on Environmental Quality's (TCEQ) Web site lately, you could be missing out on some of the available electronic features.

You can sign up to receive complimentary TCEQ updates by e-mail. You will only receive updates on items you choose—and it's easy to change your subscriptions or unsubscribe at any time. By signing up, you can receive e-mail alerts as soon as announcements and new information are posted on the Web site. Visit the TCEQ home page and click on "Sign up for e-mail updates" to select your choice.

LisTCAA Listserv: Many Texas city attorneys participate in the International Municipal Lawyers Association Municode listserv. Now's your chance to glean and share information on a listserv that consists only of Texas attorneys! To join, please go to www.texascityattorneys.org and click on the "LisTCAA" link on the left side of the page.

IMLA Conferences: The International Municipal Lawyers Association conducts various seminars that complement the TCAA programs. This month's featured seminar is IMLA's 2010 mid-year seminar. The seminar will be held on April 18-20, 2010, at the Omni Shoreham Hotel in Washington, D.C. For more information or to register, go to www.imla.org and click on "events."

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

Articles

Municipal Annexation: Is It Really That Complicated (Updated March 2010)? 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

Reserved Powers Doctrine: Kirby Lake Dev. LTD., et al. v. Clear Lake City Water Auth., No. 08-1003 (Tex. 2010). The issue in this case is whether a political subdivision can bind itself in such a way as to indefinitely restrict its legislative discretion to choose what propositions are included in its bond elections. TCAA and TML argued in their brief that construing the Clear Lake Water Authority's contracts to require the authority to indefinitely place issues on bond elections would forever deprive the local government of its legislative discretion to set the ballot for its future bond elections. The brief argued that the contract should not be interpreted to deprive the authority of future legislative discretion. The brief was filed February 11, 2010.

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 Act: Save Our Springs Alliance, Inc. v. City of Dripping Springs, et al., No. 03-04-00683-CV (Tex. App.—Austin Feb. 11, 2010) (on reh.). The court of appeals withdrew its July 2009 opinion and substituted this opinion. The city entered into agreements with two landowners in the city's extraterritorial jurisdiction allowing the landowners to develop portions of their property for residential, commercial, and recreational use. The agreements were approved by the city council in public meetings during April 2001. Save Our Springs Alliance, Inc. (SOS), is a nonprofit corporation dedicated to protecting the Barton Springs segment of the Edwards Aquifer. SOS sued the city, alleging that city agreements with landowners allowing development in the Edwards Aquifer would result in added pollution to the environmentally sensitive Edwards Aquifer. SOS argued that the agreements violated the Texas Constitution, and that the public notices regarding the city council's approval of the agreements did not meet the requirements of the Open Meetings Act (OMA). The district court granted summary judgment to the city on SOS's OMA claim, and granted the city's plea to the jurisdiction on the remaining claims based on SOS's lack of standing. SOS appealed.

Standing

A plaintiff must have standing for the court to have subject-matter jurisdiction to decide the merits of the plaintiff's claims. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-45 (Tex. 1993). An association, like SOS, has standing when "(1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization's purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Texas Ass'n of Bus., 852 S.W.2d at 447 (quoting Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). Only one member of the organization needs to have standing individually to give the entire organization standing. See Hays County v. Hays County Water Planning P'ship, 106 S.W.3d 349, 357 (Tex. App.—Austin 2003, no pet.). For an individual to have standing, that person must show an injury that is traceable to the challenged action and that can likely be redressed by a favorable judicial opinion. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) ("[W]e may look to the similar federal standing requirements for guidance.").

SOS argues that its members have injuries including environmental injury to Barton Springs Pool, to landowners' well water, procedural injury, as taxpayers, and from various other effects of the development. The court of appeals held that none of these alleged injuries gives SOS standing. First, injury to SOS's members' environmental interests, without real property ownership, is not an injury to a particularized, legally protected interest sufficient for standing. See Defenders of Wildlife, 504 U.S. at 560-61. Any injury to landowners' well water was too conjectural or speculative to give standing to SOS. SOS failed to cite legal authority giving it standing to argue a procedural injury. The taxpayers also did not have standing because the city would be reimbursed for any taxpayer funds it may spend in this case. Finally, the other possible injuries suffered by SOS's members are not germane to SOS's purpose, and therefore do not convey standing to SOS. The court of appeals held that SOS did not have standing to pursue its claims against the city.

Open Meetings Act

Section 551.041 of the Open Meetings Act (OMA) requires that a governmental body "give written notice of the date, hour, place, and subject of each meeting held by the governmental body." TEX. GOV'T CODE 551.041. The Supreme Court of Texas has held that notice requirements are not met if "less than full disclosure" is given. Cox Enters., Inc. v. Board of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986). The Court has also held that the notice provision does not require a city to "state all of the consequences which may necessarily flow from the consideration of the subject stated." Texas Turnpike Auth. v. City of Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977). In Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Authority, the Third Court of Appeals held that the notice was sufficient because it listed the applicable parties to the agreements, the type of agreement, and the general area of where the agreements were to take place. 96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied).

In this case, the notice stated:

Consider Approving a Development Agreement with Cypress-Hays, L.P., including adopting Ordinance No. 1280.1 Designating a District under Section 42.044 of the Texas Local Government Code.

The court of appeals held that this notice was sufficient because it listed the applicable parties, the type of agreement (development), and where the agreements would be located by citing Section 42.044 of the Local Government Code, which involves industrial districts. The court of appeals noted that including all of the consequences of such an agreement, if listed on the notice as requested by SOS, would overwhelm the public. See City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 766 (Tex. 1991) ("Far from serving the purposes of the Act, this degree of specificity would so overwhelm readers that it would prove even less informative than the current notice.").

The court of appeals affirmed the trial court's judgment.

Public Information Act: City of Dallas v. Abbott, No. 07-0931 (Tex. Feb 19, 2010). On May 16, 2002, the City of Dallas received a Public Information Act (Act) request for various types of information relating to the city's "Assessment Center Process." On May 22, the city responded to the requestor, seeking clarification on what types of information were requested. The requestor responded to the city's clarification request on May 28, and on June 10 the city requested an opinion from the attorney general on whether certain requested documents could be withheld under Texas Rule of Evidence 503(b)(1) and Section 552.107 of the Government Code (collectively the attorney-client privilege).

The attorney general's office determined that the city's request for an opinion was untimely. The opinion cited ORD-663 (1999), which stood for the proposition that when a governmental body sought clarification of a request, the time spent waiting for the written clarification from the requestor tolled the ten-business-day deadline by which an opinion from the attorney general had to be requested. The tolled ten-business-day clock would have expired on June 6, and the city requested the opinion on June 10. The attorney general also noted that the attorney-client privilege was considered a discretionary exception that was waived by the city because it was asserted after the statutory deadline.

The city sued, arguing that its request for an opinion was timely because the ten-business-day deadline did not begin to run until the requestor clarified the request. Alternatively, the city argued that the attorney-client privilege was a "compelling reason" that could be raised after the deadline and would overcome the general presumption of openness under the Act. The trial court rejected both of the city's arguments, and the court of appeals affirmed.

In its decision, the Supreme Court of Texas concluded that the attorney general's standard interpretation that a request for clarification tolls the ten-business-day timeframe is wrong. In making its determination, the Court assessed the legislative intent behind Section 552.222(b) of the Government Code, which is the provision allowing a governmental body to ask a requestor to clarify the request. The Court reasoned that because governmental bodies requesting an attorney general's opinion must specify the exceptions that apply within the ten-business-day period under Section 552.301(b), it is reasonable to assume that the legislature intended that governmental bodies would have a reasonably clear idea of the information requested before the ten-business-day deadline began to run.

Further, the Court reasoned, if the statutory period was to be tolled while the city awaited clarification, the city would have very little time to assess applicable exceptions to disclosure and prepare an estimate of costs. This would undermine the "orderly process" that the legislature envisioned in which both parties could proceed with a reasonable idea of the burdens and costs to be incurred in connection with a request. The Court held that when a governmental body, acting in good faith, requests clarification from the requestor, the ten-business-day period to request an attorney general's opinion is measured from the date the request is clarified or narrowed, and not tolled. As a result, the city could withhold the requested information from disclosure because it did not miss the deadline in 552.301(b). Because the Court concluded that the ten-business-day period ran from the date of the requestor's clarification, it did not reach the city's argument that the attorney-client privilege was a compelling reason for non-disclosure that could be raised after the statutory deadline has passed.

Civil Service: City of Waco v. Kelley, No. 07-0485 (Tex. Feb 19, 2010). Larry Kelley, the assistant chief of police in Waco, was indefinitely suspended from his civil service position after being arrested for driving while intoxicated in Austin, Texas. After the chief indefinitely suspended Kelley, he appealed to an independent hearing examiner under Section 143.057(a) of the Local Government Code. The hearing examiner found that the charges against Kelley were true but ordered Kelley reinstated to the rank of sergeant and ordered his indefinite suspension to be changed to a temporary suspension of 180 days. The city appealed the hearing examiner's finding to the district court, arguing that the hearing examiner exceeded its jurisdiction. See TEX. LOC. GOV'T CODE A143.057(j). The district court held that the hearing examiner did not exceed his jurisdiction. The court of appeals dismissed the case for lack of jurisdiction, arguing that only a police officer can appeal. The Supreme Court of Texas held that the city could appeal a hearing examiner's opinion and remanded the case back to the court of appeals. The court of appeals then held that the hearing examiner did not exceed his jurisdiction in reducing Kelley's length of suspension, but did exceed his jurisdiction by demoting Kelley to the rank of sergeant. The court of appeals ordered Kelley reinstated to the position of commander, the closest civil service position to that of assistant chief.

Section 143.021 of the Civil Service Act states that all police officers are protected by the Act, except the department head, the chief, and the chief's appointees (which includes the assistant chief in Waco). However, Section 143.014(h) of the Civil Service Act gives assistant chiefs the same appellate rights as other officers, including the right to appeal to an independent hearing examiner. TEX. LOC. GOV'T CODE 143.57(a). In City of Pasadena v. Smith, the Supreme Court of Texas held that hearing examiners are bound by the same deadlines, procedures, and limitations as the civil service commission. 292 S.W.3d 14, 20 (Tex. 2009). The "most accurate test" for determining whether "a hearing examiner exceeds his jurisdiction [is] when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine." City of Pasadena, 292 S.W.3d at 21.

Hearing Examiner's Authority

A hearing examiner can determine whether an officer is:

(1) permanently dismissed from the fire or police department;
(2) temporarily suspended from the department; or
(3) restored to the person's former position or status in the department's classified service.

(f) If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction in the period of suspension.

Tex. Loc. Gov't Code 143.053(e)-(f). In other words, the chief's appointees do not have civil service protection, but if the appointee is indefinitely suspended, the appointee has the same rights and privileges to a hearing as other officers. Id. 143.014(h).

In this case, the hearing examiner: (1) concluded that the charges against Kelley were true; (2) changed the indefinite suspension to a temporary suspension; and (3) ordered Kelley reinstated to the rank of sergeant. First, the city argued that Section 143.014(h) limits the hearing examiner's jurisdiction to uphold whatever suspension was given if the charges are held to be true. The Court disagreed and held that Section 143.053, not Section 143.014(h), gives the hearing examiner his jurisdiction if the charges against an officer are found to be true. Section 143.053(e) and (f) provide the hearing examiner's jurisdiction when the charges are found to be true. The examiner can therefore either dismiss the appointee or temporarily suspend the appointee. If he does neither, then his only other option is to fully restore the individual to his former position.

Suspension and Back Pay

The city argued that Section 143.053 would require that the hearing examiner uphold an indefinite suspension because the examiner does not have the authority to change an indefinite suspension to a temporary suspension. Also, Section 143.053's use of the word "or" when describing disciplinary action means that the examiner cannot combine disciplinary actions. The Court held that the hearing examiner had three options: (1) temporarily suspend the appointee for 15 days (because this is the maximum time that the chief could have suspended the officer); (2) dismiss the appointee from his office; or (3) restore the officer to his previous position. The Court also held that the examiner could change an indefinite suspension to a temporary suspension, and could choose to temporarily suspend an officer and restore him to his previous position. However, if an officer is suspended, even temporarily, he would not receive any pay or benefits. TEX. LOC. GOV'T CODE 143.055(e). Therefore, the hearing examiner did exceed his jurisdiction in suspending the officer for more than 15 days and for awarding any back pay for the time Kelley was suspended. But the hearing examiner had jurisdiction to award the back pay for the time Kelley was not suspended and to change his indefinite suspension to a temporary suspension.

Demotion

Section 143.057 allows an officer to appeal a demotion to a hearing examiner, but that section does not give an examiner the authority to demote an officer if a demotion has not been recommended by the chief. Because a demotion was not recommended by the chief in this case, the hearing examiner did not have the authority to demote Kelley.

Conclusion

Because part of the hearing examiner's decision was outside his authority, the entire decision is vacated and a rehearing in front of a hearing examiner was granted.

Procedure: Gallagher Headquarters Ranch Development, LTD., et al., v. City of San Antonio, et al., No. 08-0773 (Tex. Feb 12, 2010) (per curiam). The Court remanded the settlement agreement to the trial court because the agreement contained a latent ambiguity that required a finding of fact.

Dangerous Buildings: Carlson, et al., v. City of Houston, No. 14-08-01044-CV (Tex. App.—Houston [14th Dist.] Feb 18, 2010). The court of appeals held that the district court has jurisdiction over this dangerous building case under Local Government Code chapter 214 because the specific provisions in Sections 214.001 and 214.0012 prevail over the general provisions of Section 214.216.

Texas Whistleblower Act: Moore v. City of Wylie, et al., No. 08-08-00039-CV (Tex. App.—El Paso Feb 17, 2010). The court of appeals dismissed Moore's whistleblower claim because the senior building inspector was not the appropriate law enforcement authority to whom to report a legal violation of the Penal Code.

Governmental Immunity-Tort: City of Wichita Falls v. Romm, No. 2-09-237-CV (Tex. App.—Fort Worth Feb 18, 2010) (mem. op.). The court of appeals dismissed Romm's suit against the city because the city did not have control over the property, the exit ramp, and the sign that allegedly caused Romm's accident.

Procedure: Henry, et al., v. City of Fort Worth, et al., No. 2-09-065-CV (Tex. App.—Fort Worth Feb 18, 2010) (mem. op.). The court of appeals upheld the unsigned settlement agreement because the agreement was validated and filed in court.

Takings: City of Austin v. Whittington, et al., No. 03-07-00729-CV (Tex. App.—Austin Feb 18, 2010) (mem. op.). The court of appeals held that there was sufficient factual evidence to support Whittington's bad faith claim against the city in response to the city's misrepresentation of taking his property to build a chilling plant.

Standing: Stop the Ordinances Please, et al., v. City of New Braunfels, No. 03-07-00386-CV (Tex. App.—Austin Feb 19, 2010). The court of appeals held that STOP had associational standing to challenge the city's ordinances relating to the use and carriage of alcoholic beverages on the Comal and Guadalupe River.

Governmental Immunity-Tort: Salinas v. City of Brownsville, No. 13-08-00146-CV (Tex. App.—Corpus Christi-Edinburg Feb 25, 2010) (mem. op.). Salinas did not bring an actionable claim under the Tort Claims Act because the property involved was not city property and it was not the use of city property that caused her injuries when she fell from a washing machine while being treated by EMTs.

Governmental Immunity: Fleming v. Patterson, et al., No. 13-08-00199-CV (Tex. App.—Corpus Christi-Edinburg Feb 25, 2010). The court of appeals dismissed Fleming's claims against the city because governmental immunity protected the city and Fleming did not sue the city officials.

Workers Compensation: Goldminz v. City of Dallas, No. 05-08-01420-CV (Tex. App.—Dallas Feb 26, 2010) (mem. op.). The court of appeals held that Goldminz was a reserve police officer, a volunteer under the Dallas City code, and therefore the city was not required to pay workers compensation.

Governmental Immunity-Tort: City of Wichita v. Jenkins, et al., No. 2-09-337-CV (Tex. App.—Fort Worth March 4, 2010) (mem. op.). The court of appeals held that the trial court had jurisdiction over Jenkins' Tort Claims Act claim when a police car rear ended their vehicle because the city had actual notice of the claims under the police report.

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-0761 (Magistrate Authority): Concludes that, because of the differing statements intermediate appellate courts have made regarding a court's jurisdiction under Article 47.01a(a), the attorney general cannot predict with any certainty whether a court would conclude Code of Criminal Procedure Articles 47.01a(a) and 47.02(b) authorize a justice of the peace or a municipal judge to award title or ownership of a motor vehicle. However, depending upon the foreclosure proceeding at issue, the attorney general concludes that a justice court could award title or ownership of a motor vehicle in enforcing a lien under Government Code section 27.031. The Texas Department of Motor Vehicles may, under Section 501.074(a)(4) of the Transportation Code, accept a court order from a justice or municipal court in carrying out its duty to issue a new certificate of title for a motor vehicle, the ownership of which has been transferred by operation of law.

Opinion No. GA-0762 (Municipal Pollution Control in the ETJ): Concludes that, pursuant to Water Code Section 26.177(b)(5), if a type A general-law municipality determines that implementing a water pollution control program in its extraterritorial jurisdiction is necessary to achieve pollution control objectives in its territorial jurisdiction, the Legislature has authorized the municipality to regulate, in its extraterritorial jurisdiction, pollution resulting from generalized discharges of waste that are not traceable to a specific source.

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 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.
Texas City Attorneys Association
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