TCAA NEWS
(Volume 4, Issue 4 – April 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

Eighty-First Legislative Session Is in Full Swing: Keep current by reviewing the weekly edition of the Texas Municipal League’s Legislative Update, which includes a short summary of most city-related legislation that is moving, as well as articles and other updates on items of interest. View the update at www.tml.org by clicking on “Legislative.”

TCAA Speakers Needed! The TCAA Fall Seminar in conjunction with the TML Annual Conference is tentatively scheduled for October 22, 2009, in Fort Worth. The TCAA Board will pick speakers for that agenda at its June 10, 2009, meeting. If you are interested in presenting, please send your submission to Scott Houston at legalgovt@tml.org by May 22, 2009.

2009 TCAA Summer Conference – Register Now! 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 Isla Grand Beach Resort (formerly the Radisson Resort) on June 10-12, 2009. To register for the conference or for more 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, LLP
  • Brown & Hofmeister, L.L.P.
  • Davidson & Troilo, P.C.
  • Denton, Navarro, Rocha and Bernal, P.C.
  • Doyen Sebesta, LTD, LLP
  • FOIA Systems – Open Records
  • Hermansen, McKibben, Woolsey & Villareal, L.L.P.
  • LexisNexis
  • Lloyd, Gosselink, Rochelle & Townsend, P.C.
  • McKamie Law
  • Municipal Code Corporation
  • Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
  • 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.
  • Texas Municipal League Intergovernmental Risk Pool
  • Thompson & Knight, LLP

Early registration ends May 8! To register for the conference or for more information, please go to www.texascityattorneys.org.

SPECIAL NOTE TO SUMMER CONFERENCE ATTENDEES – SCHLITTERBAHN DISCOUNT: TCAA has negotiated discount admission for attendees and their families to the Schlitterbahn water park on the island. The rate is $20 per person. If you are interested in purchasing tickets, please e-mail Scott Houston at shouston@tml.org with your name, contact information, and number of tickets.

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

Articles

The Effects of Visual Clutter on Driving Performance, Jessica Edquist, Accident Research Centre at Monash University: Ms. Edquist’s thesis discusses the negative effect of road signage on driving, including hazard perception and speed maintenance. The full article can be found here.

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

Civil service: Jackson v. City of Texas City, No. 08-0723, before the Supreme Court of Texas. Civil service firefighters Jackson and Nunez sued the city after they were terminated for failure to maintain their EMT certification. Jackson and Nunez argued that their terminations were appealable under the Texas Municipal Civil Service Act as “disciplinary terminations.” Amici argued that the terminations were non-disciplinary and thus fell outside of the scope of the Act, and that the terminations were subject to the city’s collective bargaining agreement because the fire-fighters were terminated for violating conditions in their contracts of employment.

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.

Takings: Southwestern Bell Telephone L.P v. Harris County Toll Road Auth., No. 06-0933 (Tex. Jan. 15, 2009). Southwestern Bell (SWB) was forced to relocate its facility due to road construction by the Harris County Toll Road Authority. SWB did so, billed the county, and demanded reimbursement. The county refused to pay, and SWB brought this suit as a takings claim under Article I, Section 17, of the Texas Constitution (presumably to do an end run around the county’s immunity). To recover in a takings claim for inverse condemnation, a property owner must establish that: (1) the state intentionally performed certain acts; (2) that resulted in a taking of property; and (3) that the taking was for a public use. The court concluded that the first and third elements were present in this case, but the second element was not. That is because SWB does not have a vested property interest in the public right-of-way in which its facilities are located. Citing the U.S. Supreme Court and various secondary sources, the court concluded that a utility essentially uses the public rights-of-way pursuant to a license, and that the license is secondary to the primary public need – transportation. The court held that SWB is not entitled to reimbursement for the relocation.

Annexation: City of Granite Shoals v. Ted Winder, No. 03-08-00323-CV (Tex. App.—Austin March 19, 2009). The general law city of Granite Shoals annexed two islands on Lake LBJ. The islands consisted of a handful of high-value homes and were annexed pursuant to Local Government Code Section 43.033. That section allows unilateral annexation by a general law city if certain elements are met. Another provision in Section 43.033 allows a majority of property owners in the annexed area to petition for disannexation, and the island property owners took advantage of that provision and were disannexed. In the meantime, the voters of the city adopted a home rule charter.

The city then re-annexed the islands pursuant to its home rule authority. The property owners then filed for a declaratory judgment that, among many other things, the city did not have 5,000 inhabitants and was thus not eligible for home rule status, and that the city acted in bad faith in making the determination of the number of inhabitants. The city answered, arguing lack of subject matter jurisdiction and standing issues.

The city argued that the court lacked subject matter jurisdiction because the only way to challenge the election was pursuant to an election contest. The city further argued that the only way to challenge the “bad faith” aspect of conversion to home rule is by a quo warranto suit. Citing incongruent precedent relating to previous election law provisions, the court concluded that the challenge regarding the number of inhabitants falls outside of the scope of the current election contest provision (and is thus not an “election contest”). The court held that the property owners could continue their declaratory judgment action.

With regard to the city’s quo warranto argument, the court held that the city’s determination of inhabitants could be set aside upon a showing of bad faith. If the property owners can show that the determination was made in bad faith, the conversion to home rule becomes void ab initio, which allows a collateral attack on the conversion. Because the property owners raised more than a scintilla of evidence that the city acted in bad faith, the court examined the methods by which the city made the determination of inhabitants.

City witnesses testified that they counted the number of utility connections and multiplied by 3. The city did not use demographics or census data to determine that multiplier. Those facts were enough to establish the possibility of bad faith. The court affirmed the denial of the trial court’s plea to the jurisdiction.

Annexation: Village of Salado v. Lone Star Storage Trailer, II Ltd., et al, No. 03-06-00572-CV (Tex. App.—Austin April 10, 2009) (mem. op.). The Village of Salado annexed property along its eastern boundary, including property owned by Lone Star, pursuant to the voluntary annexation provision of Section 43.025 of the Local Government Code. That section authorizes a majority of the qualified voters living in an area next to certain cities to petition the city for annexation. If a majority of the qualified voters are in favor of annexation, three of those voters file an affidavit with the city stating the majority requirement has been met. In this annexation, the area had multiple qualified voters, but Lone Star’s property was the only property that was actually contiguous to the city.

After the annexation, Lone Star filed a declaratory judgment action asking the court to declare the annexation void. The village and Lone Star filed competing motions for summary judgment, and the district court granted Lone Star’s motion, declaring the annexation void. The village appealed. Lone Star argued that Section 43.025 requires that Lone Star consent to the annexation because Lone Star is the only “contiguous” landowner. Lone Star argued that non-contiguous voters cannot consent to an annexation, even if their property is part of a larger total area to be annexed. The village argued that the annexation was proper because the requirements of Section 43.025 were followed.

TML and TCAA filed an amicus brief, arguing under Section 43.025 that: (1) “contiguous area” means the entire area to be annexed, not just those tracts that directly border the city; (2) the entire contiguous area may be annexed as a unified tract; and (3) the plain language of the voluntary annexation statute does not require the consent of each bordering landowner.

The court of appeals held that Section 43.025 does not distinguish between “voters” who are on the border of the city and those who are not. The statute does not require unanimous consent and also does not provide an exception for cases where one landowner owns all of the contiguous property and does not consent. The court of appeals held that the entire area is used to determine whether the area is contiguous, not just one tract.

The court of appeals reversed the district court’s judgment and rendered judgment that the annexation was valid and enforceable.

Public Information Act: City of Dallas v. The Dallas Morning News, LP, No. 05-07-01736-CV (Tex. App.—Dallas April 9, 2009). The issue before the court was whether a city official’s Blackberry e-mails that do not go through the city’s e-mail system are subject to the Texas Public Information Act. The court of appeals held that summary judgment in the court below was improper because there was insufficient evidence of what rights and duties the city had regarding the Blackberry account. An article on this case is available in the April 16 issue of the TML Legislative Update at http://www.tml.org/legis_updates.asp

Governmental Immunity-Contract: City of Houston v. Steve Williams, No. 14-08-00059-CV (Tex. App.—Houston March 31, 2009). Firefighters sued the City of Houston to recover amounts deducted from payments they received upon termination of employment. The city filed a plea to the jurisdiction based on sovereign immunity. In February 2007, the Supreme Court of Texas held that this employment contract case should be remanded to the trial court to be reviewed under new Sections 271.151-.160 of the Local Government Code, which governs immunity regarding city contracts. The trial court reviewed the case under Sections 271.151-.160 and determined that governmental immunity had been waived by the city through the employment contract. The court of appeals affirmed.

Takings: Jayanti Patel v. City of Everman, No. 2-07-303-CV (Tex. App.—Fort Worth April 2, 2009) (mem. op.). In this case, Patel sued the city after the city demolished some of his apartment buildings that were allegedly not in conformance with city codes. In 2004, the court of appeals held that: (1) the property was demolished for a public purpose; (2) Patel consented to the demolition since he did not successfully challenge the court order allowing the city to demolish the buildings; and (3) there was a fact issue regarding whether there were code violations. The court of appeals remanded the case on the issue of code violations. On remand, the city filed an amended answer, raising defenses based on city ordinances and Chapter 214 of the Local Government Code. The trial court granted the city’s summary judgment. The court of appeals affirmed the trial court, holding that the city filed sufficient evidence with its traditional motion for summary judgment and correctly challenged Patel’s evidence to grant its no evidence motion for summary judgment.

Collective Bargaining: Renaye Ochoa v. City of Galveston, No. 01-08-00490-CV (Tex. App.—Houston March 12, 2009) (mem. op.). Ochoa and another police officer sued the city under their collective bargaining agreement after they were denied promotions based on test scores. The court of appeals affirmed the trial court’s judgment for the city based on reformation of the conflicting terms of the collective bargaining agreement prohibiting appeals from test scores.

Governmental Immunity: Nashville Texas, Inc. v. City of Burleson, No. 01-08-00274-CV (Tex. App.—Houston March 12, 2009) (mem. op.). Nashville Texas, Inc., sued the city after the city placed dumpsters near Nashville’s property. The court of appeals affirmed the trial court’s order granting the city’s plea to the jurisdiction because the city’s prayer for attorney’s fees did not constitute a counterclaim.

Employment Discrimination: Keith Johnson v. City of Fort Worth, No. 2-08-369-CV (Tex. App.—Fort Worth March 26, 2009) (mem. op.). Keith Johnson sued the city for racial discrimination after the city refused to rehire him. The court of appeals affirmed the trial court’s dismissal of Johnson’s suit because Johnson’s petition was filed after the statute of limitations on employment discrimination claims had passed.

Public Information Act: City of Houston v. Larry Edgar Estrada and Mayer Brown, L.L.P. No. 14-08-00900-CV (Tex. App.—Houston March 26, 2009) (mem. op.). Mayer Brown filed a petition for writ of mandamus to require the city to respond to public information requests regarding Larry Estrada. The court of appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction since Mayer Brown was a proper requestor under the act.

Governmental Immunity: Dahlila Guerra Casso v. City of McAllen, No. 13-08-00618-CV (Tex. App.—Corpus Christi-Edinburg March 26, 2009) (mem. op.). Casso, a former city employee, filed a breach of contract claim against the city, alleging that the city should have maintained her health insurance. The court of appeals held that the city was performing a proprietary function when it provided health insurance to Casso, and therefore was not entitled to governmental immunity.

Governmental Immunity-Tort: City of Richmond v. Delia Garcia Rodriguez, No. 01-08-00471-CV (Tex. App.—Houston April 2, 2009) (mem. op.). Rodriguez sued the city under the Texas Tort Claims Act after a police car hit her vehicle during a pursuit of another vehicle. The court of appeals rendered judgment for the city based on governmental immunity, holding that the police officer was entitled to official immunity based on the police officer’s acting in good faith during the pursuit.

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-0699 (Immigration): concludes that the Texas Legislature is not prohibited from adopting some form of legislation designed to compel local governments to comply with any duties they may have under federal immigration laws, so long as such legislation is not inconsistent with federal law.

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.
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