TCAA NEWS
(Volume 6, Issue 3 April 2011)
"Your Source for Information About the Texas City Attorneys Association"
News and Updates

TCAA Speakers and Topics Needed!  The TCAA Fall Seminar in conjunction with the TML Annual Conference is tentatively scheduled for October 13, 2011, in Houston.  The TCAA Board will choose speakers for that agenda at its June 8, 2011, meeting.  If you are interested in presenting, or just have a topic you would like someone else to cover, please send your submission to Scott Houston at shouston@tml.org by May 27, 2011.

Join us for the TCAA Summer Conference on June 8-10, 2011, at the Isla Grand Beach Resort in South Padre Island! Earn up to 10 hours of MCLE credit, including 1.5 ethics hours.  To register for this conference, please go to www.texascityattorneys.org.

Hotel Information: The TCAA room block at the Isla Grand Beach Resort (formerly the Radisson Resort) will open at 8:00 a.m. on Monday, March 28, 2011. At that time, rooms will be available on a first-come, first-served basis.  To make your reservations, please call the Isla Grand Beach Resort directly at 800-292-7704 or 956-761-6511. (Refer to the “TCAA Summer Conference room block” to receive the conference rate.) TCAA has also secured several “overflow” hotels and will open those reservations at 9:00 a.m. on the same day.  For details on those hotels, please go to the conference registration link at www.texascityattorneys.org.

Conference topics include:

  • Ethics:  Social Media and Legal Ethics Update
  • Title VII and the Guidelines:  Promotional Exams and Recent Trends
  • How to Write a Prosecutor Friendly Ordinance
  • Making Public/Private Partnerships Work
  • “Sinful Activities” Regulation and the First Amendment
  • Budget Pitfalls
  • Recent Federal Cases of Interest to Cities
  • Recent State Cases of Interest to Cities
  • Zoning Board of Adjustment – Pitfalls to Avoid
  • Ethics:  Duties, Obligations, and Potential Liability for Signing Legal Opinion Letters
  • Advanced Employment Law Pitfalls – Dos and Don’ts
  • Legislative Update
  • Billboard and Sign Regulation:  Recent Cases and Trends
  • Top Ten Construction Procurement Mistakes
  • Effective Communications with the Police Department
  • Real Estate Issues:  Dealing with Liens and Other Issues

Special thanks to this year’s sponsors:

Reception Sponsors
Bickerstaff Heath Delgado Acosta, LLP
McKamie Krueger, LLP

Towel Sponsor
Lloyd, Gosselink, Rochelle & Townsend, P.C.

Additional Sponsors
Boyle & Lowry, L.L.P.
Brown & Hofmeister, L.L.P.
Davidson & Troilo, P.C.
Denton, Navarro, Rocha and Bernal, P.C.
McKibben, Woolsey & Villareal, L.L.P.
LexisNexis
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, Trevino & Guevara, LLP
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
Texas Municipal League Intergovernmental Risk Pool

2011 Salary Survey:  The TCAA Salary Survey is now available on the front page of the TCAA Web site at www.texascityattorneys.org.  In addition to the brief, informal survey, you can link to much more detailed information from the Texas Municipal League’s Salary Survey, as well.

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

Articles

Federal Judge Rules in Favor of Town of Flower Mound in Fair Housing Case,Ed Voss, Brown and Hofmeister.  On March 29, 2011, Judge Michael H. Schneider of the United States District Court for the Eastern District of Texas issued his decision in Inclusive Communities Project, Inc. v. Town of Flower Mound, Civil Action No. 4:08-CV-0433.  Judge Schneider ruled that the Town’s housing practices do not violate the federal Fair Housing Act (Act).  The significance of the Town’s victory is better appreciated by understanding the unusual factual background leading up to the filing of the lawsuit. Read more

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

Eminent Domain:  Enbridge v. Avinger, No. 10-0950, in the Supreme Court of Texas.  The Texas Pipeline Association (TPA) and TML filed a joint amicus curiae letter brief in support of Petitioner. TPA and TML argued that the market value rules and appraisal methodology approved in the underlying case exceed the indemnification principle of Article I, Section 17, of the Texas Constitution and jeopardize the financial viability of public infrastructure projects in the State of Texas. Additionally, TPA and TML argued that – if allowed to stand – the appellate court’s approval of the landowner’s convoluted compensation analysis as proper methodology will greatly increase the burden of litigating market value in condemnation cases.

Workers Compensation: Ins. Co. of the State of Pennsylvania v. Muro, No. 09-0340, in the Supreme Court of Texas.  TML, TCAA, and TML Intergovernmental Risk Pool filed a joint amicus curiae brief in support of the Petitioner.  The amici argued that the Supreme Court of Texas should hold that Labor Code Section 408.161(b) requires proof of an injury to the affected body part in question to establish the total loss of use of that body part. Any contrary interpretation of section 408.161(b) will have an immediate and adverse effect upon the ability of Texas cities to operate their workers’compensation programs at an affordable cost to the taxpayer.

Permit Vesting:  Harper Park Two v. City of Austin, No. 02-10-00506-CV, in the Third Court of Appeals.  The principal issue in this case is whether a plat, filed in 1985 for an office project, vests development regulations in place at that time.  The plat clearly vests the development regulations for that project.  However the developer submitted new information in 2007 that showed his intent to place a hotel on the property.  TML and TCAA argued that, while Texas law protects the rights of landowners and developers, it is not meant to secure vested rights in twenty-five-year-old development regulations by relying on a plat that does not include a currently proposed project.

Recent Federal 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. These case analyses are reprinted with permission from the International Municipal Lawyers Association.

Personnel:City of Oak Ridge North v. Mendes,No. 09-10-00378-CV (Tex. App — Beaumont March 24, 2011) (op.). Paul Mendes served as the City of Oak Ridge North city manager. There were eighteen months left on Mendes’ two-year contract when the city council voted to terminate him.  On appeal, Mendes sought to recover:  (1) severance pay pursuant to the provisions of his written employment agreement; (2) incentive payments for securing grant funds while acting as city manager; and (3) damages for alleged violations of chapter 123, Texas Civil Practice and Remedies Code (the “Texas Wiretap Statute”).  The issue on appeal was whether the city was immune from these claims.

Severance Pay Claim:  In regard to the severance pay claim, the appellate court held that Mendes’ pleadings were deficient.  Specifically, his pleadings failed to cite to a statute that established the city waived its right to government immunity from being sued for breach of contract.  The appellate court explained that Mendes’ pleadings might have cited to Local Government Code Section 271.152, which provides:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for the breach of the contract, subject to the terms and conditions of this subchapter.

Section 271.151(2) defines a “[c]ontract subject to this subchapter” to mean “a written contract stating the essential terms of the agreement . . . that is properly executed on behalf of the local governmental entity” (emphasis added). 

Construing “properly executed” in the context of a type A city, the appellate court held “that the phrase refers to the ordinances, acts, laws, or regulations enacted to authorize the person who signed the contract, . . . to sign the contract on the entity’s behalf.”  The phrase “properly executed” does not mean that each provision in a contract must be enforceable.  The city had argued that the severance pay provision of the employment agreement was void because it unduly interfered with the statutorily directed “at will” status of a city manager under Local Government Code Section 25.028, which provides that a “city manager is appointed by and serves at the will of the governing body” of the city.  

Because of the appellate court’s construction of the phrase “properly executed,” the deficiency in Mendes’ pleadings could be cured. The appellate court held that the trial court should have conditionally dismissed the claims and granted Mendes the right to replead his claim.  Thus, the issue was remanded to the trial court for further proceedings.

Incentive Pay Claim:  While Mendes presented evidence that the city council had approved additional compensation for him based upon grant monies secured by the city, the appellate court held that the employment contract was fully integrated.  Specifically, the contract provided that it “supersede[d] any and all other agreements, either oral or in writing, between the parties . . . .”  Thus, the evidence presented regarding the incentive pay was incompetent parol evidence.   Because there was no properly executed written contract providing for the payment of incentive pay for grants, the appellate court found that the trial court had erred in denying the city’s plea to the jurisdiction with respect to the claim.  The appellate court dismissed the claim with prejudice.

Wiretap Statute Claim:  Mendes, citing the Texas Wiretap Statute, claimed that the city improperly intercepted communications to which he was a party while employed by the city.    The appellate court concluded that the legislature did not waive governmental immunity in the Texas Wiretap Statute and thus, the trial court should have dismissed the claim.  The appellate court dismissed the claim with prejudice. 

Sign Regulation: Primary Media LTD. v. City of Rockwall, No. 05-09-01116-CV (Tex. App.—Dallas March 17, 2011) (mem.op.).  In this case, the city was attempting to regulate billboards in its extraterritorial jurisdiction (ETJ), but in adopting its ordinance, it referenced a repealed ordinance.  Primary Media argued that this reference made the city’s ordinance void.  The trial court granted the city’s summary judgment based on scrivener’s error.  The court of appeals overruled the trial court’s grant of the city’s summary judgment motion and held that the city did not prove scrivener’s error as to its reference to a repealed ordinance. Thus, the entire case was sent back to the trial court to determine if the city’s ordinances regulated Primary Media’s billboard in the city’s ETJ. 

Governmental Immunity-Tort: Saramanee v. Town of Northlake,No. 02-10-00152-CV (Tex. App.—Fort Worth March 17, 2011) (mem.op.). The court of appeals held that the trial court erred by granting the Town of Northlake’s plea to jurisdiction because there was sufficient evidence that the town’s immunity may have been waived.   There was evidence that the plaintiff’s injuries were a direct result of the evasive force of a police officer’s use or operation of a vehicle.

Governmental Immunity-Tort: City of San Antonio v. Vasquez, No. 04-10-00575-CV (Tex. App.—San Antonio March 16, 2011). The court of appeals dismissed the plaintiff’s claims against the city because the plaintiffs failed to show that their injuries were not a result of the city’s gross negligence, malicious intent, or bad faith as required by the Tort Claims Act and the recreational use statute.  

Governmental Immunity-Tort: City of Waco v. Fuentes, No. 10-09-00126-CV (Tex. App.—Waco March 9, 2011) (mem.op.).  The court of appeals upheld the judgment against the city in the trial court because there was adequate evidence of causation and damages, and because the city did not provide sufficient information for the court to review the appropriateness of the plaintiff’s expert witness.

Personnel: City of Houston v. Williams,No. 09-0770 (Tex. March 18, 2011).  In this case, retired firefighters sued the city alleging that the city improperly deducted previously-paid overtime amounts from their termination pay and that termination pay should have included premium salary.  The Supreme Court of Texas held that: (1) ordinances enacting an employment agreement between the city and firefighters constituted a unilateral contract to which waiver of immunity statute applied; (2) the city’s civil service statute did not constitute a contract between the city and the firefighters; (3) the firefighters were third party beneficiaries of employment agreements between the city and the union; and (4) meet and confer agreements and a collective bargaining agreement are contracts subject to waiver of immunity statute.

Governmental Immunity-Ultra Vires: City of Benavides v. PenaNo. 04-10-00927-CV (Tex. App.—San Antonio March 23, 2011) (mem.op.). The court of appeals held that the trial court did not have jurisdiction because the plaintiff, a former employee, should have sued the city official and not the city. 

Statute of Limitations: Prado v. City of Fredericksburg Police Department, No 04-10-00565-CV (Tex. App. — San Antonio March 30, 2011) (mem.op.). The court of appeals affirmed the dismissal of Prado’s claims by the trial court because the statute of limitations of two years had run on his Tort Claims Act claim, and also on his federal §1983 claim based on state law limitations on personal injury claims.

Governmental Immunity-Contract: City of San Antonio v. KGME, Inc.,No. 04-10-00263-CV (Tex. App — San Antonio March 30, 2011)(op. withdrawn, r’hrng denied). A new opinion was released, but the holding regarding the Prompt Payment Act addressed in last month’s newsletter stays the same.

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. This double issue will include opinions from January 11th through March 10th.

Opinion No. GA-0849 (Public Officers):  Concluded that the general manager of a water district does not occupy an office, because his actions are subject to control by the water district board. The common-law doctrine of incompatibility does not prohibit the general manager of a water district from serving as a city manager. The city manager of a home-rule city who is appointed by and subject to termination by the city council is not an officer within the common-law doctrine of incompatibility.

Opinion No. GA-0850  (Impact Fees):  Concluded that, pursuant to Local Government Code Subsection 395.022(b), if it is determined that a City of Eagle Pass ordinance imposes an impact fee under Chapter 395, the Eagle Pass Independent School District is not required to pay that fee in the absence of an agreement to do so.   The district’s trustees must determine whether the expenditure for a waterline is “necessary in the conduct of public schools” and therefore permitted under Education Code section 45.105.  To the extent that the city ordinance at issue imposes unilateral action, Education Code Section 11.168 is inapplicable to the issue of whether the district must comply with the city ordinance.  If the district determines that paying for city-requested infrastructure accomplishes a public purpose of the district and that it otherwise meets the requirements established by the Texas Supreme Court, the district's expenditure of funds for city-mandated infrastructure will not violate article III, Section 52, of the Texas Constitution.

Opinion No. GA-0851 (Hotel Occupancy Tax): Concluded that hotel occupancy tax revenues collected under chapter 351, Tax Code, must be expended only as authorized by the chapter. Chapter 351 prohibits hotel occupancy tax revenues, including any surplus funds, from being expended for general city purposes.

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 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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