Eightieth Legislative Session in Full Swing: Keep current by reviewing the weekly edition of the Texas Municipal League’s Legislative Update, which includes significant committee and floor actions on city-related legislation and other items of interest. View the update at the TML Web site by clicking on “Legislative.”

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.

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
• Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C.
• McKamie Law
• 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

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

Public Information Act: Disclosure of e-mail protected by the attorney-client privilege, Request Identification No. 275919. TML and TCAA argued that the attorney general has clearly stated the elements used to determine whether a communication between an attorney and his or her client is protected from disclosure, and urged the attorney general to reject the false assertion by the requestor that the disclosure (or nondisclosure) of a communication made between an attorney and the governmental body that he or she represents is governed in any way by Section 551.129 of the Open Meetings Act (authorizing an “out-house” attorney to attend an executive session via telephone or Internet communications).

Building Codes: Duty of a municipality to adopt the International Residential Code and the International Building Code, RQ-0567-GA. TML and TCAA (along with the Building Officials Association of Texas) argued, among other things, that a city may amend its building codes to meet local concerns, and whether to amend life safety provisions is arguably not advisable, but also arguably legally permissible.

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

Law Enforcement: Cronen v. Patricia A. Davis and the City of Houston, No. 13-05-087-CV (Tex. App.—Corpus Christi-Edinburg, March 15, 2007). Appellant challenged the trial court’s grant of summary judgment in favor of the City of Houston. The court upheld the trial court’s decision, holding that a city retains its common law immunity from suit for the performance of its governmental functions with respect to false arrest and false imprisonment claims, and therefore the trial court’s grant of the plea to the jurisdiction by the city was appropriate.

Vested Rights: City of San Antonio v. En Seguido, Ltd., No. 04-06-00206-CV (Tex. App.—San Antonio, March 14, 2007). The City of San Antonio appealed a grant of summary judgment in favor of En Seguido. The trial court held that En Seguido held vested rights from 1971 based on a subdivision plat filed at the time. The city appealed, arguing several issues of fact. The court of appeals reversed the summary judgment and remanded to the trial court, stating that the record did not contain enough evidence to conclusively establish that the project did not change between the filing of the plat in 1971 and the beginning of work (more than thirty years later), and also whether actions taken by En Seguido constituted “progress toward completion” of the project.

Sovereign Immunity: Martin Cassidy, et al. v. City of Balch Springs, Texas and K.M. Hubert, No. 05-05-01340 (Tex. App.—Dallas March 26, 2007). Cassidy and other police officers sued the City of Balch Springs to recover monetary damages based on certain civil service pay plans. The city filed a plea to the jurisdiction arguing that the city and Hubert (the city manager) were immune based on sovereign immunity from suit. The officers argued that the city’s immunity was waived by the “plead and be impleaded” language in Section 51.075 of the Local Government Code and the city charter. The court held that under Tooke v. City of Mexia and City of Houston v. Williams, the “plead and be impleaded” language and the civil service statutes were insufficient to waive immunity. Therefore, the court affirmed the trial court’s dismissal of the plea to the jurisdiction.

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, March 14, 2007) (On Rehearing). Lehman sued the city for breach of the terms of an easement dedication, fraud, and other contractual issues, including a declaratory judgment action, 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. Lehman argued that the city’s immunity was waived by the “plead and be impleaded” language in Section 51.075 of the Local Government Code and the city charter. On rehearing, the court of appeals held that under Tooke v. City of Mexia, the “plead and be impleaded” language is insufficient to waive the city’s immunity. The court of appeals also held that allowing connection to a sewer line is a governmental function, so immunity is retained under the Texas Tort Claims Act. Finally, the court of appeals held that Lehman’s declaratory judgment action also failed because it lacked legislative consent for the action. 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.

Annexation: In re Spiritas Ranch Enterprises, L.L.P., No. 02-06-463-CV (Tex. App.—Fort Worth, March 22, 2007) (On Rehearing). The Town of Little Elm began annexation procedures against Spiritas Ranch’s land under Local Government Code Section 43.052(h)(1). Spiritas asked for inclusion in the town’s three-year annexation plan. The town rejected the request, and Spiritas requested arbitration of the issue under Section 43.052(i). The town placed the arbitration issue and the annexation issue on the agenda for discussion at a council meeting. In response, the day before the council meeting, Spiritas filed suit against the town and sought a temporary restraining order, from the trial court so that the arbitration would occur before the annexation was attempted by the town. The trial court denied the request for a temporary restraining order and Spiritas requested and received a temporary restraining order from the court of appeals. Spiritas and the town then agreed to arbitrate, but the town indicated that it would continue with the fast track annexation regardless of the pending arbitration. On rehearing, the court of appeals held that Spiritas was entitled to mandamus relief because: (1) in most cases, a private citizen cannot bring suit to overturn an annexation that has already occurred; (2) a private landowner has a privately-enforceable, statutorily-created right to arbitration under Section 43.052(i); (3) the right to arbitrate includes the right to do so before the fast-track annexation actually occurs, otherwise the right to arbitrate would be meaningless; and (4) Spiritas would have no adequate remedy if the town were allowed to annex the property before the arbitration. The court of appeals also held that the town’s separation of powers argument (passing an annexation ordinance is a legislative matter that the court should not prohibit) is unfounded in this case since the mere passage of the ordinance would irreparably harm Spiritas. The court of appeals ordered the trial court to grant the temporary restraining order, which prohibits the town from taking any action to annex before the conclusion of the arbitration.

Open Meetings Act: Frieda Fiske v. City of Dallas, No. 06-06-00062 (Tex. App.—Dallas April 6, 2007). Fiske sued the City of Dallas to be reinstated to her prior position as municipal judge, arguing that the city’s failure to appoint her to a new term was in violation of the Open Meetings Act (Act). The city allows a citizen advisory commission to recommend appointments to the municipal judge positions. Fiske applied for reappointment, but was not recommended by the commission. The city adopted all of the commission’s suggestions, including the recommendation to not reappoint Fiske. Fiske argued that the action to not reappoint her was void or voidable because the city and the commission violated the Act by not giving appropriate notice of the meetings where it received the recommendations and failed to make a record of the meetings. The city argued that the commission did not fail to give correct notice or fail to make a record, that the commission is not subject to the Act, and that the case is moot because the term she would have been appointed to has expired. The court of appeals affirmed the trial court’s grant of summary judgment to the city because the case was moot, because the term had expired, and because the commission is not a governmental body subject to the Open Meetings Act.

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.], April 5, 2007) (On Rehearing). 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 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, and because the “plead and be impleaded” language in Section 51.075 of the Local Government Code was insufficient to waive the city’s immunity from suit.

Code Enforcement: Carrasco v. City of Alvin, No. 14-06-00687-CV (Tex. App.—Houston [14th dist.], March 27, 2007). Appellants challenged the trial court’s grant of the city’s plea to the jurisdiction asserting governmental immunity regarding building inspections and code enforcement. The court of appeals held that: (1) a city’s possible “responsibility” for acts does not act as an express consent to suit and waiver of governmental immunity; (2) building inspections and building code enforcement are governmental functions; and (3) governmental immunity is not waived when a city fails to meet its obligations under its police power.

Intergovernmental Relations: City of Laredo v. Webb County, No. 03-05-00168-CV (Tex. App.—Austin, April 4, 2007). This suit involves a declaratory judgment to determine whether Webb County needs the city’s consent to build an international bridge within its city limits. The court of appeals held that a home rule city’s roadway authority is superior to the county’s within the city limits, and that the county must have the city’s consent before constructing a road within its limits. The court of appeals reversed the trial court’s judgment in favor of the county, but remanded on the issue of when the city must give consent.

Civil Rights: Alejandro Santiago v. City of Houston and Officer Richard Pederson, No. 05-020718-CV (5th Cir. March 28, 2007) (unpub. op.). Santiago sued the City of Houston under Section 1983, arguing that Officer Pederson and the city violated his civil rights when he was shot and then falsely arrested. The district court granted summary judgment for the city and officer on all issues. The court of appeals held that the officer was protected by qualified immunity and that Santiago was not falsely arrested by the officer because the officer had probable cause to arrest him. Also, the court held that the city was not liable because Santiago did not present evidence of a city policy or custom (which is essential under a Section 1983 claim). Finally, the court dismissed Santiago’s state law claims against the city because the city could not be vicariously liable for the officer’s actions due to his qualified immunity.

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 - 0535 (Joint Elections): concludes that Section 11.0581 of the Education Code requires an independent school district to hold trustee elections as a joint election on the same uniform election date as the election for members of the governing body of a municipality located in the school district or the general election for state and county officers. If a school district with three-year trustee terms cannot comply with the election requirements stated in section 11.0581, it must change to four-year trustee terms.

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.

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

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
1821 Rutherford Lane, Suite 400
Austin, Texas 78754
www.texascityattorneys.org