The TCAA Fall Seminar in conjunction with the TML Annual Conference will be held on October 26, 2006, in Austin. The TCAA Board will pick speakers for that agenda at its June 14, 2006, Board meeting.

If you are interested in presenting, please send your submission to Scott Houston at legalgovt@tml.org by May 1, 2006.

“Quasi” Vested Rights, Lowell Denton, Denton, Navarro, Rocha & Bernal: There have been significant developments recently in the law of “quasi” vested rights. The wandering trail of the law of estoppel leads most recently through City of White Settlement v. Super Wash, Inc, 49 Tex. Sup. Ct. J. 404, 2006 WL 508628 (2006), which reversed a decision of the Fort Worth Court of Appeals that permitted the continuation of code violations on the grounds of estoppel. I was in the process of writing an update on the case for this newsletter. But before I could get finished, the Court decided City of Dallas v. Vanesko, 49 Tex. Sup. Ct. J. 487, 2006 WL 889722 (Tex. 2006), which reversed a decision of the Dallas Court of Appeals granting a variance denied by the Board of Adjustment to build a roof in violation of local regulations. Read more.

Alpine Open Meetings Act Challenge: In the case of Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, Gregg Abbott, Texas Attorney General, and the State of Texas (C.A. No. P-05-CV-75 in the United States District Court for the Western District of Texas), plaintiffs seek a decision that the Texas Open Meetings Act is unconstitutional. A hearing was held in the case on March 14, 2006. Some of the claims in the case were dismissed at that hearing, but the substantive claim that the Act violates an elected official’s right to freedom of speech will likely be set for a bench trial on the remaining issues sometime in 2006.

Please e-mail any articles or news of interest to city attorneys to Scott Houston at legalgovt@tml.org.

Development Regulations: City of Dallas v. Vanesko, No. 04-0263 (Tex. – March 23, 2006): The Supreme Court held that the Dallas board of adjustment did not abuse its discretion in denying a variance to Vanesko. A city official had previously issued a building permit for the construction of Vanesko’s house. It was later discovered that the home was in violation of height restrictions. The court upheld the denial of a variance on the grounds that the requested variance did not pertain to a condition involving “a restrictive area, shape, or slope,” as the Dallas development code requires.

Sexually Oriented Businesses: Fantasy Ranch, Inc. v. City of Arlington and T&N, Inc., No. 2-04-191-CV (Tex. App. – Fort Worth, March 23, 2006): This case involved the “anticlustering” provision of the City of Arlington’s SOB ordinance. The provision prohibits SOBs from being located within 1,000 feet of another SOB. Two gentlemen’s clubs were located within the prohibited distance on the date that the provision was adopted, and the city asked the court to determine which one was a “nonconforming use” according to the ordinance (the first line of the opinion states that “[t]his is the case of the competing cabarets”). The appeals court affirmed the trial court’s interpretation of the city’s ordinance.

Annexation: JNC Partners Denton, L.L.C. v. City of Denton, No. 2-05-439-CV (Tex. App. – Fort Worth, March 23, 2006): The city attempted to annex 5,900 acres under the “100 tracts” exemption to the municipal annexation plan requirement. The landowner requested arbitration as to whether his property should be included in the city’s three-year annexation plan. The issue in the case was whether a landowner may compel arbitration under Local Government Code Section 43.052(i) when a city denies a petition to include the landowner’s property in its plan. The Dallas court of appeals addressed this question in Hughes v. City of Rockwall, 153 S.W.3d 709 (Tex. App. – Dallas 2005, pet. granted), in which Rockwall argued that Hughes had no standing to compel arbitration because only the state, through a quo warranto proceeding, can compel a city to comply with Section 43.052(i). In remanding the case, the court disagreed with Rockwall’s position, but held that none of the evidence showed that Denton’s proposed annexation violated Section 43.052.

Substandard Buildings: Perry Teague v. City of Jacksboro, No. 2-06-032-CV (Tex. App. – Fort Worth, March 30, 2006): The Jacksboro city council approved an order requiring Teague to demolish a structure if Teague did not abate “all unhealthy and unsafe conditions” within thirty days. The city filed a plea to the jurisdiction, alleging that its governmental immunity had not been waived because Teague had failed to comply with the sole statutory procedure for challenging the order; that is, he had not filed a sworn petition requesting that the trial court issue a writ of certiorari within thirty days after receiving a copy of the city’s demolition order under Texas Local Government Code Section 214.0012(a). Disagreeing with the city’s position, the court concluded that Teague’s original petition, even though it did not request certiorari in compliance with Section 214.0012(a), was sufficient by “setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality.”

Sovereign Immunity: City of Pasadena v. Environmental Infrastructure Group, L.P., et al., No. 13-05-253-CV (Tex. App. – Corpus Christi, March 16, 2006): The City of Pasadena argued in an interlocutory appeal that the trial court lacked subject matter jurisdiction because of sovereign immunity. The appeals court, recognizing that Texas courts are split on this issue, upheld the trial court’s claim of jurisdiction over the matter. The court based the ruling on Texas Supreme Court precedent, as well as charter language allowing the city to “sue and be sued,” as well as Texas Local Government Code § 51.075. The court held that both the statute and charter language met the “legislative permission” requirement that waives sovereign immunity.

Electric Franchise Fees: Magic Valley Electric Cooperative v. City of Edcouch, No. 13-05-202-CV (Tex. App. – Corpus Christi, March 23, 2006): The court upheld the grant of class certification to the City of Edcouch as representative of a class of 27 south Texas cities served by Magic Valley Electric Cooperative, even though the contract between the city and Magic Valley was oral, not written. The class action is brought in response to alleged systematic underpayment of franchise fees by Magic Valley to the cities.

Collateral Estoppel/Res Judicata: Collins v. City of Corpus Christi, No. 13-03-428-CV (Tex. App. – Corpus Christi, March 30, 2006). The court upheld the trial court’s granting of summary judgment to the city on the basis of collateral estoppel and res judicata. The appellants attempted to bring a case based on theories that were or could have been brought in a previously decided federal action between the same parties. Thus, the parties were barred from litigation on the same “nucleus of operative facts,” even though the issues were not exactly the same as those previously raised.

Sovereign Immunity: City of Houston v. Thomas and Chorlottiea Harris, Individually and as Next Friend of Joshua Harris, A Minor, No. 14-04-01179-CV (Tex. App. – Houston, March 16, 2006). The court held that personal injury to a child caused by the child climbing on a statue fell under the premises defect guidelines of the Texas Tort Claims Act (TTCA). Since the statue that was bolted to the ground, it was not tangible personal property, but real property. The injury was caused by a design issue with the statue, creating a premise defect. Under the heightened standards applied to premises defects, the fact that no injuries had previously occurred on the statue and its separation from the public by barriers and a flower bed was sufficient to maintain the city’s sovereign immunity.

Easements: Kothmann v. City of Lubbock and Rothwell D/B/A Rothwell Construction, No. 07-04-0532-CV (Tex. App. – Amarillo, March 24, 2006). Note: this is a memorandum opinion. At issue was a drainage easement in favor of the City of Lubbock acquired by Rothwell on a piece of undeveloped land. Kothmann acquired the adjoining land from a third party by deed. Kothmann filed suit against the city alleging private nuisance. Kothmann further sought a declaration that the city violated Section 11.086 of the Texas Water Code and a declaration that the city’s conduct constituted an unconstitutional taking without compensation in violation of Article 1, Section 17, of the Texas Constitution. The court found that Kothmann agreed to the easement when he bought the land since the deed clearly provided that the conveyance was made and accepted “subject to any and all restrictions, and encumbrances, easements, covenants and conditions” filed of record. The deed also included a partial plat that reflected one of the easements as recorded.

Employment: Stephen McElroy v. City of Temple, No. 03-03-00741-CV (Tex. App. – Austin, March 16, 2006). Officer McElroy filed suit because he was not permanently promoted after working more than 60 days in the position vacated by an officer who was recalled to active military duty. The court discussed several subsections of Section 143.072 of the Texas Local Government Code and found that, while the city was required to return an absent officer to his original position upon return, the city has discretion to temporarily assign other officers following a leave of military absence.

Mootness: Freddy Davenport v. City of Dallas, No. 05-05-00211-CV (Tex. App. – Dallas, March 27, 2006). The city declared Davenport’s car wash a public and common nuisance. The trial court entered a permanent injunction against the operation of the car wash and a final judgment in favor of the city. An injunction of a common and public nuisance remains in effect during the course of a trial or until lifted by a court. After the trial court entered an agreed order releasing the cash bond, the permanent injunction expired. The court of appeals found the issue moot, and dismissed Davenport’s appeal.

Opinion No. GA - 421: Concludes that a councilmember whose current term of office is uncompensated in accordance with an ordinance is eligible for election to the Texas Legislature under Article III, Section 19, of the Texas Constitution.

Special Opinion Request Note: Attorney general opinion request RQ-0451-GA asks various questions about the new conflicts disclosure requirement for local government officials and vendors (H.B. 914, which creates Local Government Code Chapter 176). A second opinion request by the Texas education commission was consolidated with RQ-0451-GA, and the deadline for filing comments was moved to April.

Statewide Cable Franchises: Texas and Kansas City Cable Partners, L.P., d/b/a Time Warner Cable v. City of West University Place, Burt Ballanfant, and Michael Ross, No. H-05-4177 in the Federal District Court for the Southern District of Texas, Houston Division. TML and TCAA, as amici curiae, argued that that the one percent PEG fee that a cable provider must pay pursuant to Chapter 66 of the Texas Utilities Code (added by S.B. 5, 2005) is not preempted by the federal Cable Act.

Annexation and Prior Use: Olan Karm and Marc Payne v. City of Castroville, No. 04-05-00512 CV in the Fourth Court of Appeals, San Antonio. TML and TCAA argued that the filing of a subdivision plat does not “vest” the use of property subsequent to annexation pursuant to Section 43.002 of the Texas Local Government Code. Nor does the filing of a subdivision plat vest a landowner’s right to use property in a certain way after annexation pursuant to Chapter 245 of Local Government Code.

National Cable Franchising: In the Matter of Implementation of Section 621(a)(1) of the Cable Communication Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992, Docket No. MB 05-311, at the Federal Communications Commission. TML and TCAA argued that the Texas legislature has streamlined the cable franchising process in Texas, and provides for an almost immediate grant of authority to provide cable service in the state. If the Federal Communications Commission intends to establish new standards or requirements for cable franchises, TML and TCAA requested that those changes do not undercut or diminish the standards set out in Texas’ hard-fought S.B. 5. In fact, TML and TCAA submit that, if anything, the standards and requirements in S.B. 5 be used as a model for any federal-level changes. Finally, TML and TCAA argued that the Commission does not have the authority to enact national cable franchising rules.

Annexation: Meaning of the term “service plan” under Sections 43.056 and 43.141, Local Government Code, for purposes of a petition to disannex submitted by the voters of an annexed area of a municipality, RQ-0447-GA, Texas attorney general’s office. TML and TCAA respectfully requested that the attorney general’s office decline to answer the request because it involves a fact issue that cannot be resolved in the opinion process. TML’s and TCAA’s position is that, for every annexation, a city must adopt a service plan that is “legally compliant,” which means that the plan must conform to the requirements of Section 43.056, which is up to each individual city to determine based on the advice of local legal counsel. A court is the proper forum to answer this question.

Tax Increment Financing: Whether a municipality may designate an area as a “reinvestment zone” in which the financing plan does not include the issuance of bonds on notes, RQ-0442-GA, Texas attorney general’s office. TML argued that tax increment financing is not limited to projects that are financed by bonds. The requestor had implied that because the Texas Constitutional enabling provision for tax increment financing mentions the issuance of bonds for purpose of redevelopment, bonds would be the only method of increment financing. TML pointed out that pay-as-you-go tax increment financing need not rely on the Texas Constitution for authorization, since taxes are fully-paid, and therefore bonds are not necessary.

Conflicts Disclosure: Conflict of interest disclosure requirements for local government officers and persons who contract with local governmental entities, RQ-0451-GA, Texas attorney general's office. State Representatives Beverly Woolley and John Smithee and Texas Education Agency Commissioner Shirley Neeley requested an opinion from the Attorney General regarding the interpretation and compliance with H.B. 914, which enacted Chapter 176 of the Local Government Code. TML submitted comments and suggestions on various problems with interpretation and logistical compliance.

TCAA Salary Survey: TCAA’s annual salary survey is posted on the TCAA Web site at www.texascityattorneys.org. The survey is brief, but you can obtain additional, customized information for a fee by clicking on the link below the survey link.

2006 South Padre Conference: The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 14-16, 2006. Registration information is available by clicking on the “events” link at www.texascityattorneys.org.

Special thanks to this year’s sponsors:

• Bickerstaff Heath Pollan Caroom, L.L.C.
• Brown & Hofmeister, L.L.P.
• Davidson & Troilo, P.C.
• Denton, Navarro, Rocha & Bernal, P.C.
• Donato, Minx & Brown, P.C.
• Johnson Radcliffe Petrov & Bobbitt P.L.L.C.
• Law Offices of Wm. M. McKamie, P.C.
• Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C.
• Olson & Olson, L.L.P.
• Ross, Banks, May, Cron & Cavin, P.C.
• Strasburger and Price, L.L.P.
• Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
• TML Intergovernmental Risk Pool

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
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Austin, Texas 78754
www.texascityattorneys.org