TCAA NEWS
(Volume 3, Issue 4 – April 2008)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

TCAA Speakers Needed! The TCAA Fall Seminar in conjunction with the TML Annual Conference is tentatively scheduled for October 30, 2008, in San Antonio. The TCAA Board will pick speakers for that agenda at its June 11, 2008, meeting. If you are interested in presenting, please send your submission to Scott Houston by May 23, 2008, at legalgovt@tml.org.

2008 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 detailed information from the Texas Municipal League’s salary survey as well.

2008 TCAA South Padre Conference – Register Now! The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 11-13, 2008. To register for the conference or for topics or other 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, L.L.P.
  • Brown & Hofmeister, L.L.P.
  • Davidson & Troilo, P.C.
  • Denton, Navarro, Rocha & Bernal, P.C.
  • Doyen Sebesta, LTD, L.L.P.
  • Hermansen, McKibben, Woolsey & Villareal, L.L.P.
  • LexisNexis
  • Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C.
  • McKamie Law
  • Olson & Olson, L.L.P.
  • Ross, Banks, May, Cron & Cavin, P.C.
  • Russell & Rodriguez, L.L.P.
  • Strasburger & Price, L.L.P.
  • Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
  • Thompson & Knight, L.L.P.
  • TML Intergovernmental Risk Pool

TCAA Partners with LexisNexis to Offer Low-Cost Legal Research Packages: TCAA and LexisNexis are proud to announce low-cost, online legal research solutions for TCAA members. Exclusively for city and assistant city attorneys, LexisNexis is offering three discounted online legal research solutions. Visit www.texascityattorneys.org for more information. LexisNexis representatives will be on hand at the South Padre Conference to answer questions.

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

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

ETJ Regulations: RQ-0664-GA; Authority of a county and/or a municipality to impose and enforce density regulations. This request asks about the authority of a city or a county to “regulate density/zone through platting” in the ETJ or unincorporated areas. TML and TCAA requested that the attorney general’s office decline to answer the request, and defer to a finder of fact as to whether the city or county regulations at issue are permissible. The request arises out of a specific dispute that appears to involve numerous questions of fact, and should thus be resolved between the parties.

Regulatory Takings: City of Houston v. MaGuire Oil, No. 08-0159 in the Texas Supreme Court. This case arose from a City of Houston ordinance regulating oil and gas exploration around Lake Houston. The city revoked a permit, and a drilling company sought over $100 million in damages. TML and TCAA argued that a city should not be liable for a regulatory taking if the claimant has not sought and obtained from the city’s policy-making body a final decision regarding the application of a regulation to his property. The petition for review was filed on February 25, 2007, and a decision is pending.

Takings: The State of Texas v. Central Expressway Sign Assoc., et al., No. 08-0061 in the Texas Supreme Court. This case involves valuing land for condemnation purposes when there is a billboard on the site. In the case, the state desired to condemn property that included a billboard. When valuing the land, the sign company argued that the future income of the billboard should be considered in valuing the property and the court of appeals agreed. TML and TCAA joined an amicus brief that argues, among other things, that the court of appeals should be reversed because the state did not acquire the billboard business so the future revenues should not be considered in the condemnation award.

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.

Contractual Liability: City of Grey Forest v. Glen W. Vernon et al., No. 07-06-0301-CV (Tex. App. — Amarillo, March 31, 2008). Vernon and other property owners filed suit alleging breach of contract and seeking a declaratory judgment against the City of Grey Forest to enforce an agreement that the city allegedly made to build a continuous road and provide utilities in exchange for a grant of easement over Vernon’s property. The trial court ruled in favor of Vernon, and held that the city, by motion of the city council, had agreed to construct the road and provide utilities in exchange for an easement, and had ratified the agreement by acknowledging the project during council meetings. The court of appeals reversed the trial court’s ruling, holding that the city did not enter into an enforceable contract that would obligate it to pave a road or provide utilities, and that Vernon was not entitled to damages under a contractual theory or promissory estoppel.

Tort Claims Act: City of Corsicana v. Patrick Stewart, Sr. et. al., No. 07-0058 (Tex. March 28, 2008) (per curiam). Stewart sued the city when his car was swept away at a low water crossing with his children still inside the car. He argued that the low water crossing was a premises defect under the Texas Tort Claims Act and that the city was liable because it knew the road flooded, and knew it was raining at the time, but did not close the road. The trial court granted the city’s plea to the jurisdiction based on governmental immunity, finding that the city did not have actual knowledge of the flooding. The court of appeals reversed the trial court and remanded the case. The Supreme Court reversed the court of appeals and affirmed the trial court, holding that: (1) while the city may have had constructive knowledge, it did not have actual knowledge of the flooding; and (2) the city could not have been held liable for its discretionary decision to not be better prepared to respond to flooding in the city.

Civil Service: City of Dallas v. Dwight Dequire, et. al., No. 06-0543 (Tex. March 28, 2008) (per curiam). Police officers sued the city for alleged breach of contract for the city’s failure to promote the officers in violation of civil service rules. The trial court granted the city’s plea to the jurisdiction on immunity and the court of appeals reversed on the issue of attorneys’ fees. The Supreme Court reversed the court of appeals and sent the case back to the trial court to be reviewed under Dallas Fire Fighters Ass’n v. City of Dallas, 231 S.W.3d 388, 388-89 (Tex. 2007) and Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) regarding whether the city had waived its immunity.

Occupation Tax: Jim Lowenberg v. City of Dallas, No. 06-0310 (Tex. March 28, 2008) (per curiam). Commerical business owners sued the city when the city began charging a fee on commercial buildings to generate funds for fire protection services. The city’s fee ordinance also included a criminal penalty for failure to pay the fee. The business owners argued that the fee was an unlawful occupation tax. The trial court certified a class and granted the class’s motion for summary judgment. The court of appeals reversed, holding that the fee was an unlawful tax but recovery was barred by the voluntary payment rule. The Supreme Court reversed the court of appeals, and affirmed the trial court, holding that: (1) the fee was an unlawful tax under Texas Constitution Article VIII, Section 1, because the fee was to raise revenue and exceeded any regulatory cost; and (2) the payment was not voluntary because there was a criminal penalty associated with non-payment.

Tort Claims Act: City of Arlington v. Charles Barnes, et. al., No. 2-07-249-CV (Tex. App.—Fort Worth March 27, 2008) (mem. op.). Charles Barnes sued the city when a police officer hit Barnes’ car during a pursuit. The trial court denied the city’s plea to the jurisdiction and no evidence motions for summary judgment. The court of appeals reversed and rendered, dismissing Barnes’ case by holding that the city’s immunity was not waived under the Tort Claims Act. The court of appeals found that a city accident review board finding that the officer “failed to exercise due care” in his driving is not proof of “reckless driving” as was required by the Tort Claims Act and Transportation Code Section 546.005 before an emergency vehicle driver can be held liable. Therefore, Barnes had shown no evidence that his case could be pursued under the Tort Claims Act.

Takings: Hollywood Park Humane Society v. Town of Hollywood Park, No. 04-07-00131-CV (Tex. App.—San Antonio April 2, 2008). The Humane Society sued the town for: (1) inverse condemnation for destroying and removing deer from an owner’s property under a Texas Parks and Wildlife Department trap, transport, and transplant license; and (2) enacting a feeding ban ordinance. The town captured a sample of the deer, killed them, and then tested them for disease before the rest could be transported. The trial court rendered judgment in favor of the town. The court of appeals affirmed the trial court’s judgment holding: (1) that no individual in the town had acquired property rights to the deer sufficient to give them standing for an inverse condemnation action for the city’s actions; and (2) because no individuals in the town have a vested property right in the deer, the trial court had no jurisdiction to determine the validity of the feeding ban ordinance.

Public Information Act: Carlos Blanco, Jr. v. City of Laredo, No. 04-07-00368-CV (Tex. App.—San Antonio April 9, 2008) (mem. op.). Blanco sued the city for alleged violations of the Texas Public Information Act for allegedly failing to give Blanco all the documents that were responsive to his request. The trial court held that the city had given the requestor all the requested documents. The court of appeals affirmed, holding that the city only had to give documents that were in existence, and that there was insufficient proof that the city had not done so.

Tort Claims Act: Marcus A. Gipson, et. al., v. City of Dallas¸ No. 05-07-00628-CV (Tex. App. —Dallas March 11, 2008). Gipson sued the city under the Tort Claims Act after the city failed to promptly respond to an medical emergency call on behalf of his mobile. Gipson called 911 in response to his mother’s medical emergency. The ambulance did not come for a long period of time, so he drove his mother to the fire house, which was less than two minutes away. The trial court granted the city’s plea to the jurisdiction. The court of appeals affirmed the trial court holding: (1) that the emergency employee exception to the Tort Claims Act’s waiver of immunity cannot by itself waive immunity; and (2) non-use of an emergency vehicle in response to an emergency call does not invoke the Tort Claims Act.

Tort Claims Act: Indemnity Ins. Co. v. City of Garland, No. 05-06-01250-CV (Tex. App.—Dallas April 4, 2008). Indemnity, a workers compensation insurance carrier, filed a subrogation suit under the Texas Tort Claims Act (Act) against the city and a city employee based on injuries caused by a city employee’s use of a vehicle. The attorney for the city informed Indemnity that it had to choose whether to sue the city or the employee under the Act, and should dismiss the suit against the employee with prejudice. Indemnity complied with the city’s suggestion, and the suit against the employee was dismissed with prejudice. The city moved to have the case against the city dismissed, arguing that since Indemnity had a final judgment against the employee, it could not proceed with its case against the city because indemnity is entitled to a judgment against only the city or the employee. The trial court granted the city’s motion. The court of appeals reversed, holding that the dismissal with prejudice was not a final judgment under the language of the Act.

Whistleblower Act: City of Dallas v. Kenneth Watts, No. 05-07-00996-CV (Tex. App.—Dallas March 31, 2008). Watts sued the city after being terminated, allegedly in violation of the Whistleblower Act. Watts initiated the city’s grievance proceedings, and received a hearing, but left the hearing site because the hearing started late. The city argued that Watts did not have standing to bring suit under the Whistleblower Act since he had not completed the city’s grievance proceedings. The trial court denied the city’s plea to the jurisdiction. The court of appeals affirmed, holding that there was sufficient evidence that Watts may have “initiated” the city’s grievance procedures as required by the Whistleblower Act.

Takings: City of Austin v. Kenneth A. Roberson, No. 13-06-0218-CV (Tex. App.—Corpus Christi March 27, 2008) (mem.op.). Roberson sued the city after discovering that a city sewer pipe crossed his land and that the city did not have a recorded easement. The Third Court of Appeals held that Roberson could bring his suit under the Declaratory Judgment Act and remanded the case to allow the trial court to award discretionary attorneys' fees to Roberson. The city appealed the award of attorneys' fees, arguing that: (1) the fees were unsegregated between the causes of action that allow for attorneys' fees and those that do not; (2) the fees were unjust and inequitable; and (3) Roberson was improperly allowed both a condemnation award and attorneys' fees. The court of appeals affirmed the attorneys' fees, holding that: (1) the standard of review is abuse of discretion; (2) the trial court did not abuse its discretion in holding that the causes of action were inextricably intertwined and allowed unsegregated fees; (3) the city did not properly raise the issue that the fees were unjust or inequitable; and (4) Roberson was not required to elect between attorneys fees' and a condemnation award.

Takings: Harris County Flood Control Dist. v. Rogers Roberts, City of Houston, et. al., No. 14-06-00696-CV (Tex. App.—Houston [14th Dist.] April 3, 2008). In this condemnation case, the trial court held that a billboard was a fixture on condemned property and valued the leasehold interest to reflect that the sign was a fixture. Harris County Flood Control District, the condemning authority, argued that the sign was not a fixture but personal property that could be removed as evidenced by the sign company’s lease with the landowner. The court of appeals affirmed the trial court’s ruling that, in this case, the sign was a fixture on the property.

Elections: Bill White, Mayor of Houston, et. al. v. Carroll G. Robinson, et. al., No. 14-06-00167-CV (Tex. App.—Houston [14th Dist.] April 3, 2008). Robinson and others, originators of a citizen-initiated charter amendment, sued the city after their charter amendment and the city’s similar charter amendment both passed at the same election, but the city only implemented the city’s charter amendment. The city filed a plea to the jurisdiction, which the trial court denied, and granted the citizens’ motion for summary judgment. The city argued that: (1) the citizens brought the wrong cause of action and should have brought an election contest or a quo warranto proceeding; and (2) the citizens lacked standing to bring the claim as they had suffered no separate injury from the rest of the public. The court of appeals reversed the trial court’s holding that the citizens did not show sufficient injury to give them standing to sue over the overlooked charter amendment.

Civil Service: City of Houston v. Donald Clark, No. 14-03-00399-CV (Tex. App.—Houston [14th Dist.] March 18, 2008). The city appealed a hearing examiner’s decision that only the fire chief, not the acting fire chief, can suspend a fire dispatcher. The trial court affirmed the examiner’s decision, holding that Section 143.117 of the Local Government Code allows only a fire chief, not an acting fire chief, to suspend an employee. The city appealed, arguing that the examiner lacked jurisdiction or exceeded his jurisdiction under Section 143.1016 of the Local Government Code. The court of appeals held that the examiner had jurisdiction and did not exceed his jurisdiction.

Civil Rights: James L. Reynolds, et. al., v. City of New Orleans, et. al., No. 06-31122 (5th Cir. (La.) April 1, 2008) (per curiam). Reynolds and others sued the city under Section 1983 arguing that the city’s mandatory evacuation order due to Hurricane Katrina violated their constitutional rights, including equal protection, due process, and unconstitutional search and seizure. The trial court dismissed the plaintiffs’ cases. The Fifth Circuit affirmed, holding that the citizens did not argue their equal protection claim before the court, and that they provided insufficient evidence of their due process claims.

Civil Rights: Sheronda Daniels, et. al. v. City of Dallas, et. al., No. 07-10883 (5th Cir. (Tex.) March 28, 2008) (per curiam). Daniels sued the city under Section 1983 after her husband, a bystander, was killed by a police officer during a pursuit. The trial court held for the city. The court of appeals affirmed, holding that, even if the officer was negligent or grossly negligent, there was no evidence that he was deliberately indifferent to causing harm to the point of causing a constitutional violation.

Civil Rights: Roark & Hardee L.P., et. al. v. City of Austin, et. al., No. 06-51670; 07-50441 (5th Cir. (Tex.) March 27, 2008). Multiple bars in Austin sued the city, arguing that the city’s smoking ban ordinance was unconstitutional. The trial court held that the ordinance was unconstitutionally vague. The city appealed, arguing that the plaintiffs lacked standing and that the ordinance was not unconstitutionally vague. The court of appeals reversed, holding that the bar owners had standing and that the ordinance was not unconstitutionally vague on its face.

Civil Service: Delisa Seals, et. al. v. City of Dallas, et. al., No. 05-07-51670 (Tex. App.—Dallas March 26, 2008). Delisa Seals and others, city fire rescue employees, sued the city for violations of civil service rules, the city charter, and general procedures by transferring city employees. The trial court granted the city’s plea to the jurisdiction. The court of appeals affirmed the trial court, holding that: (1) there was no contract between the employees and the city that would waive immunity; (2) the employees had no property interest in their public employment that constitutional takings law would protect; and (3) the plaintiffs had not been harmed by the city’s actions.

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-0612 (Civil Service): concludes that, under Section 142.009 of the Local Government Code, a city is required to "pay a fire fighter or police officer for an appearance as a witness in a criminal or civil suit in which the municipality or political subdivision or government agency is a party in interest if the appearance: (1) is required; (2) is made on time off; and (3) is made by the fire fighter or police officer in the capacity of a fire fighter or police officer." In Section 142.009, the Legislature did not provide that a city is required to pay a fire fighter or police officer for an appearance as a witness in a civil service hearing before a hearing examiner when the fire fighter or police officer is subpoenaed in his or her capacity as a fire fighter or police officer and testifies during his time off.

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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