TCAA NEWS
(Volume 5, Issue 4—April 2010)
"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 28, 2010, in Corpus Christi. The TCAA Board will pick speakers for that agenda at its June 9, 2010, 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 legalgovt@tml.org by May 28, 2010.

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. 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.
Texas Municipal League Intergovernmental Risk Pool

For hotel or other information, or to register, 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 waterpark on the Island. The rate is $21.99 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 by May 14. (TCAA will not be able to secure discounted tickets after May 14.)

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.

2010 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

Immunity from Mechanic's Liens Reconfirmed, Jeffrey S. Chapman, Ford, Nassen & Baldwin, P.C. The Texas Property Code protects public lands from attachment, execution, and forced sale. If a city commissions construction work on public property, the contractor, subcontractors, and material suppliers may not impose a lien on that land. But what happens when a city purchases or acquires land that was improved by private parties prior to the city's acquisition? A recent case involving Linbeck Construction and the City of Grand Prairie discussed that issue and confirmed the position that liens filed against private land that later becomes public are invalid. Read more.

Attorney General REQUESTS of Interest to Cities

RQ-0874-GA: Whether a member of a school district board of trustees may simultaneously serve as mayor of a type A general law municipality whose geographical boundaries overlap with those of the school district. To view the request, go to: http://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2010/pdf/RQ0874GA.pdf.

RQ-0877-GA: This request inquires about the authority of a type A economic development corporation to spend sales tax proceeds to assist a low-income housing organization. To view the request, go to: http://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2010/pdf/RQ0877GA.pdf.

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

Civil Service: RQ-0869-GA Whether a citizen advisory committee to a police chief may review information contained in a police personnel file maintained under Local Government Code, Section 143.089(g). TML and TCAA filed a brief arguing that a citizen advisory committee should be considered part of the “department,” allowing committee members to review civil service police officer (g) files.

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.

Exactions: City of Carrollton v. RIHR Inc., No. 05-08-01715-CV (Tex. App.—Dallas March 18, 2010). RIHR owns two residential development lots in Carrollton and applied to the city for building permits to complete construction of houses on those lots. The city refused to issue those permits, demanding instead that RIHR first reimburse it for a portion of its cost to remediate a collapsed retaining wall on lots not owned by RIHR.

After a bench trial, the trial court signed a final judgment in favor of RIHR on its claim that the city imposed an improper exaction as a condition to granting the requested building permits, thereby taking private property without providing adequate compensation.

Carrollton contends it only threatened an exaction. It asserts that no exaction occurred because the condition for issuing building permits was not enforced and because the building permits for the lots were granted without a payment from RIHR for a portion of the wall remediation costs.

The court of appeals disagreed and held that the record indicated that – without the temporary injunction order requiring the city to issue the building permits – the city would have continued to deny the building permits unless and until RIHR paid it for a portion of the wall remediation cost. Contrary to the city's assertion, the record established that the condition was enforced because the building permits were issued only because the trial court's mandatory injunction order required it. Further, the city did not demonstrate that an “essential nexus” existed between a legitimate government interest and the permit condition exacted. Even if the collapsed wall presented a condition adverse to public safety, and the city properly acted to eliminate the danger by remediating lots in which RIHR had no interest, there is no connection between remediation of the collapsed wall and Carrollton's exaction.

Governmental Immunity: City of Dallas v. Hillis, et al., No. 05-08-01644-CV (Tex. App.—Dallas March 30, 2010). The family of Taylor Hillis sued the city when Hillis was killed during a high speed chase with a Dallas police officer. The family sued the city for: (1) negligent hiring and retention; (2) negligent supervision, training, and direction; (3) negligent failure to discipline; (4) negligent implementation of policy; (5) negligent entrustment; and (6) wrongful death and survival. The city filed a plea to the jurisdiction. The trial court granted the plea as to the hiring, supervision, and failure to discipline issues, but denied the plea as to the implementation of policy, entrustment, and wrongful death issues. Both the city and the family appealed.

Police protection is a governmental function for which a city enjoys governmental immunity from suit and from liability. TEX. CIV. PRAC. & REM. CODE § 101.0215. Personal injury or property damage caused by the operation or use of a city vehicle can waive immunity if certain conditions are met. Id § 101.021. The court of appeals held that Section 101.021 does provide a waiver of immunity, but that Section 101.0215 does not provide an independent waiver of immunity.

The family argued that the use of the police vehicle caused Taylor's injuries. But immunity is not waived simply because a city vehicle is involved in an injury. Rather, the vehicle must have actually caused the injury. Dallas Area Rapid Transit v. Whitley¸104 S.W.3d 540, 543 (Tex. 2003). A city's immunity is not waived when the injured individual's own decisions cause the injury. City of Sugar Land v. Ballard, 174 S.W.3d 259 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In this case, the individual was killed when he crashed his motorcycle while fleeing from a police vehicle at excessive speed. The court of appeals held that it was the individual's own decisions about driving his motorcycle that caused the accident, and that the “use” of the police car was too attenuated to be a cause of the accident. The lack of a causal nexus between the use of the police car and the individual's injuries also defeats the plaintiffs' negligent entrustment, negligent hiring, negligent supervision, and negligent failure to discipline claims.

The family next argued that the city waived immunity because of the negligent implementation of its policy, which prohibits high speed chases. The court of appeals held that negligent implementation of a city policy, without an independent basis of waiver of immunity, does not waive a city's immunity.

The court of appeals held that all of the family's claims were barred by the city's immunity.

Open Meetings Act: City of Richardson v. Gordon, No. 05-09-00532-CV (Tex. App.—Dallas, March 18, 2010). In October 2007, William Gordon sued the City of Richardson alleging that executive sessions held by the city violated city charter and the Open Meetings Act. At that time, the city's charter required all council meetings to be open to the public. The city amended its charter in November 2007 to require council meetings to be open to the public, “except as otherwise permitted by state law.” Gordon amended his petition to allege violations of the charter and the Open Meetings Act up until the date of the charter amendment. After having most of his claims against the city dismissed by the trial court, Gordon sought a declaration that the council violated the charter by holding closed meetings from October 26, 2004, through November 13, 2007, and also requested various records from the closed meetings in question. The trial court denied the city's plea to the jurisdiction and the city appealed.

On appeal, the city argued that Gordon's claim for declaratory relief is moot because the city charter was amended to authorize closed meetings pursuant to the Open Meetings Act. The court noted that the city did not address how Gordon's request for agendas, tapes, and records from past meetings was mooted by the charter amendment. Citing City of Farmers Branch v. Ramos, 235 S.W.3d 462 (Tex.App.—Dallas 2007, no pet.), the court held that Gordon's request for declaratory relief, combined with his request for records from the closed meetings, meant that his claim was not moot.

Next, the city contended that even if Gordon's claim was not moot, he lacked standing to assert the claim because he was not adversely affected by an action taken in any of the closed meetings. The court based its decision on the holding in Shackelford v. City of Abilene, 585 S.W.2d 665 (Tex. 1979), in which the Supreme Court of Texas held that a citizen has a right to attend any meeting of the city council and to enjoin any meeting that violates the city's charter. Because Gordon was a citizen of the city, he had standing to complain about city council violations of the city's charter.

The city also argued that it had immunity from liability for attorneys' fees awarded under the Declaratory Judgment Act. The court of appeals disagreed, holding that governmental immunity does not bar a declaratory judgment action unless the plaintiff sought a declaration of the city's liability for money damages. Because Gordon did not seek money damages, and only sought attorneys' fees in conjunction with his declaratory judgment action, the court also resolved this issue against the city. The court of appeals affirmed the trial court's denial of the city's plea to the jurisdiction.

Governmental Immunity: City of Crowley v. Ray, No. 2-09-290-CV (Tex. App.—March 18, 2010) (mem. op.). Doug Ray began planning construction of a subdivision and obtained the City of Crowley's criteria for flood plain development (drafted by Teague Nall and Perkins (TNP)) as part of his planning process. Using the criteria, Mr. Ray began construction. After construction began, the city informed Mr. Ray that the information provided to the city by TNP was incorrect and refused to issue building permits to Mr. Ray. The city did so even though it had adopted the flood plain criteria as determined by TNP. Mr. Ray was required to erect additional retaining walls and increase fills, suffered delays in the project's completion, and lost lots in the development due to the incorrect flood plain information.

Mr. Ray sued TNP for breach of contract, professional negligence, and breach of implied warranty. He also sought declaratory judgment against the city, seeking declarations regarding several documents related to the flood plain criteria. The city filed a plea to the jurisdiction, arguing that governmental immunity protected the city from suit, and that because Mr. Ray did not properly plead under the Uniform Declaratory Judgments Act (UDJA), which allows a court jurisdiction over “any question of construction or validity” regarding a statute or ordinance. TEX. CIV. PRAC. & REM. CODE § 37.004. The city argued that because there was no statute or ordinance called into question, the statute did not apply and thus jurisdiction was not established.

The city filed an interlocutory appeal to the denial of the plea to the jurisdiction based on governmental immunity, and Mr. Ray filed a motion to dismiss in response, arguing that the requirements of Texas Civil Practice and Remedies Code Section 37.004 are not jurisdictional. The court denied Mr. Ray's motion to dismiss the city's appeal. In the interlocutory appeal, the city argued that Section 37.004 of the UDJA limits the Act's waiver of immunity to declaratory judgment actions involving claims that a statute, ordinance, or deed is ambiguous or invalid. Because none of Mr. Ray's requests for declaratory judgment make such a claim, the city argued that he failed to establish a waiver of the city's immunity. Mr. Ray responded that the city's argument did not take the purpose and extent of the UDJA into account.

The court affirmed the trial court's denial of the city's plea to the jurisdiction. The court cited a Supreme Court of Texas case stating that sovereign immunity bars declaratory judgment actions only when the plaintiff seeks money damages or seeks to impose liability on the state. Tex. Natural Res. Conservation Comm'n v. IT-Davy (74 S.W.3d 849, 855 (Tex. 2002). Because Mr. Ray's requests for declaratory judgment did not fall under one of those classes of claims, the court held that immunity was not implicated. While the court found that Mr. Ray's claims did not fall under Section 37.004 of the UDJA, it held that this was not fatal to Mr. Ray's action. Rather, the court found that other sections of the UDJA required that the Act be liberally construed and administered to fulfill its purpose to “afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations,” and that another section of the UDJA makes clear the fact that the list of cases where a court may grant declaratory relief in Section 37.004 is not exhaustive. Id. §§ 37.002(b), 37.003(c). In Ackers v. Lubbock, 253 S.W.3d 770, 774-76 (Tex. App.—Amarillo 2007, pet. denied), a case from the Amarillo Court of Appeals with a similar fact pattern, the court upheld declaratory relief even though it did not fall within the parameters of Section 37.004.

The court held that Mr. Ray's requests for declaratory relief would resolve several uncertainties regarding the flood plain criteria documents that were vital to his case against TNP. Thus, the requests were proper. To conclude to the contrary would render several UDJA provisions meaningless and ignore the Supreme Court of Texas's directive. The court overruled the city's argument that Mr. Ray failed to invoke the trial court's subject matter jurisdiction and overruled the city's argument that Mr. Ray's claim for attorney's fees should have been dismissed. Having overruled both of the city's arguments, the court affirmed the trial court's order denying the city's plea to the jurisdiction.

Water: Public Utility Commission of Texas, et al., v. City of Harlingen, et al., No. 03-08-00793-CV (Tex. App.—Austin March 26, 2010) (per curiam). The court of appeals held that the city was entitled to have the Public Utility Commission review whether the city should receive ratemaking proceeding expenses under Section 33.023 of the Utilities Code because some of the proceeding involved ratemaking.

Governmental Immunity: City of Pharr v. Aguillon, No. 13-09-00011-CV (Tex. App.—Corpus Christi-Edinburg March 25, 2010) (mem. op.). The court of appeals held that Aguillon did not satisfy the notice provisions of Section 101.101 of the Texas Civil Practice and Remedies Code because she did not provide adequate notice within the time required by the statute of the: (1) injury or damage; (2) city's fault; or (3) identity of the parties involved.

Personnel: City of Corpus Christi v. Portella, No. 13-09-00660-CV (Tex. App.— Corpus Christi-Edinburg March 25, 2010) (mem. op.). The court of appeals held that filing a claim with the EEOC is required for a retaliation civil cause of action to be allowed under Chapter 21 of the Labor Code, but that cooperation with the EEOC is not such a prerequisite.

Takings: Sweed v. City of El Paso, No. 08-09-00076-CV (Tex. App.—El Paso March 24, 2010). The court of appeals held that Sweed did not have a valid takings claim because he did not: (1) pay his property taxes; (2) pay the lien on the property; or (3) try to redeem his property after the city's tax sale. Thus, he did not own the property when it was demolished by the city.

Civil Service: Miller v. City of Houston, et al., No. 14-08-01018-CV (Tex. App.— Houston [14th Dist.] March 23, 2010). The court of appeals held, pursuant to City of Waco v. Kelley, 2010 WL 571974 (Tex. Feb. 19, 2010), that a district court has jurisdiction when a hearing examiner exceeds his jurisdiction by granting a temporary suspension of more than fifteen days.

Procedure: Trudy's Texas Star Inc., v. City of Austin, No. 03-07-00373-CV (Tex. App.—Austin March 12, 2010). The court of appeals held that trial court's grant of summary judgment for the city was valid and the city was not estopped from changing the way it regulated Trudy's non-permitted improvements because Trudy's did not show that the city misled an innocent party, left it with no other remedy, acted deliberately, or benefitted from the change in regulation. The court of appeals also held that there were genuine issues of material fact as to whether the city or Trudy's complied with their Rule 11 agreement.

Personnel: Whistleblower Act: Torres v. City of Corpus Christi, No. 13-08-00700-CV (Tex. App.—Corpus Christi-Edinburg March 11, 2010) (mem. op.). The court of appeals held that Torres properly initiated the grievance procedure necessary for a claim under the Whistleblower Act, Section 554.006 of the Government Code.

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-0766 (Dual Office Holding): Concludes that the actions of a city manager in a general-law municipality are subject to control by the city council. As a result, the city manager will not be considered to hold an office, and conflicting-loyalties incompatibility will not prevent the city manager from also serving on the board of trustees of a school district whose boundaries contain the city manager's municipality.

Opinion No. GA-0765 (Prosecutorial Discretion): Concludes that a district attorney's prosecutorial determination regarding the initiation of criminal proceedings is within the prosecutor's substantial discretion.

Opinion No. GA-0763 (Petition to Withdraw from a Regional Transportation Authority): Concludes that a municipality is not required to receive a petition signed by twenty percent of its qualified voters before calling an election to withdraw from a regional transportation authority.

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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