2007 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.

2007 South Padre Conference: The TCAA Summer Conference in South Padre Island will be held at the Radisson Resort on June 13-15, 2007. This year’s sponsors include:

• Banowsky & Levine, P.C.
• Bickerstaff Heath Pollan Caroom, L.L.P.
• Brown & Hofmeister, L.L.P.
• Davidson & Troilo, P.C.
• Denton, Navarro, Rocha & Bernal, P.C.
• Doyen Sebesta, LTD, LLP
• Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C.
• McKamie Law
• 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.
• TML Intergovernmental Risk Pool

To register for the conference or for more information, please go to www.texascityattorneys.org.

Cell Tower Siting: Sprint v. County of San Diego, Nos. 05-56076, 05-56435 in the United States Court of Appeals for the Fifth Circuit. TML and TCAA joined a brief filed by the National League of Cities in support of the County of San Diego, and argued that: (1) right-of-way use regulation of a county ordinance, which could be preempted by Section 253(a) of the federal Telecommunications Act, should be separately analyzed from the zoning aspect of the ordinance, which cannot be preempted by Section 253(a); and (2) the county ordinance was not preempted by Section 253(a).

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 (Further Notice of Proposed Rulemaking – Effect of Order on Existing Cable Franchises), at the Federal Communications Commission. TML and TCAA commented that the Texas legislature has streamlined the cable franchising process in Texas, and provides for an almost immediate grant of authority to provide service. If the Federal Communications Commission intends to establish new standards or requirements for incumbent 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.

Court Fees: Whether the optional juvenile case manager fee is unconstitutional, RQ-0579-GA. TML and TCAA argued, among other things, that optional misdemeanor court costs should not be viewed as punishment and should not be considered unconstitutional under equal protection or due process, even if optional court costs cause the fees for misdemeanor convictions to be higher in some county or municipal courts.

Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Civil Service: City of Waco v. Larry Kelley, No. 10-03-00214-CV (Tex. App. – Waco, May 2, 2007). The City of Waco appealed a summary judgment rendered in Larry Kelley’s favor, which affirmed the decision of an independent hearing examiner. The city asserted the following: (1) the hearing examiner exceeded his jurisdiction by reducing the length of Kelley’s suspension after finding that he violated the police department’s regulations; (2) the hearing examiner exceeded his jurisdiction by demoting Kelley from assistant chief of police to sergeant; (3) the hearing examiner exceed his jurisdiction by awarding back pay and benefits to Kelley; and (4) the district court erred by awarding attorney’s fees to Kelley. The court held that the hearing examiner has the authority to reduce the length of an indefinite suspension for an assistant police chief (even if the charges are found to be true), but is not authorized to restore the officer to the appointed position (even if the charges are found to be untrue). The court also held that Kelley was entitled to back pay and benefits from the end of his suspension through the date of the hearing examiner’s decision and that the district court properly awarded Kelley his attorney’s fees. However, the court held that the hearing examiner exceeded his authority and jurisdiction by ordering Kelley’s demotion when deciding an appeal of disciplinary suspension.

Property Taxes: Excel Auto and Truck Leasing, L.L.P., v. Alief Indep. Sch. Dist., et al., No. 01-04-01185-CV (Tex. App.—Houston [1st Dist.] April 19, 2007) (mem. op.). This suit is based on delinquent ad valorem taxes on vehicles owned by Excel Auto & Truck Leasing, L.L.P. Pasadena ISD filed a delinquent tax suit against Excel, and numerous taxing units intervened, including some cities, seeking to collect delinquent personal property taxes on the vehicles owned by Excel. The trial court granted summary judgment in favor of the various taxing units, and Excel argued that the trial court erred because there was a genuine issue of material fact as to ownership of the vehicles. The court of appeals overruled the issue based on evidence presented in the trial court. Therefore, because Excel failed to raise a material fact issue refuting the ownership of the vehicles, the court of appeals held that the trial court did not err in denying Excel’s summary judgment and affirmed the trial court’s judgment.

Nonprofit Ambulance Service: City of Hughes Springs and Deborah Abernathy v. The Hughes Springs Volunteer Ambulance Service, Inc., No. 06-06-00042-CV (Tex. App.—Texarkana April 27, 2007). The City of Hughes Springs brought suit arguing that the Hughes Springs Volunteer Ambulance Service (Service), a nonprofit corporation originally established “to operate an ambulance service,” no longer fulfills that original purpose. The city, a creditor of the Service, and Deborah Abernathy, a member of the Service, brought a claim seeking to have a receiver appointed for the Service, or alternatively to dissolve the Service. After a bench trial, the trial court denied the petition to dissolve the Service, and the city and Abernathy appealed. The court of appeals ruled that (1) the city did not establish that unsecured creditors, as a class, would be irreparably harmed by the Service’s continued existence; (2) Abernathy cannot invoke the failure of the Service’s original purpose; and (3) the cy pres doctrine does not apply. The court of appeals affirmed the trial court’s judgment denying the city’s and Abernathy’s claim.

Immunity: City of San Antonio v. Dolores Ytuarte, No. 05-0991 (Tex. May 4, 2007) (per curiam). Dolores Ytuarte, a bystander injured by a vehicle driven by a fleeing suspect in a police pursuit, brought a tort action against the City of San Antonio. The city’s motion for summary judgment was denied, and the city’s motion for interlocutory appeal was affirmed by the court of appeals, and review was granted. The Supreme Court held that police officers are entitled to immunity for performing discretionary duties within the scope of their authority provided they act in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). In police pursuits, “an officer acts in good faith if a reasonably prudent officer…could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing…the pursuit.” Wadewitz v. Montgomery, 951 S.W.2d 464,466 (Tex.1997). Because the court of appeals failed to apply the Chambers and Wadewitz analysis when evaluating the summary judgment proof of good faith, and the summary judgment evidence reflects, without contradiction, that the officers acted in good faith, the Supreme Court reversed the court of appeals judgment and rendered judgment dismissing the case.

Condemnation: City of Austin v. Harry M. Whittington, et al., No. 03-05-00232-CV (Tex. App.—Austin April 26, 2007) (mem. op.). The City of Austin attempted to condemn property owned by Harry Whittington and other individuals (the Whittingtons). After a condemnation proceeding in a county court at law, the city obtained title to the property, but that judgment was later reversed on appeal. Prior to the reversal of the judgment, the Whittingtons filed a declaratory judgment action in district court and obtained declarations regarding the effect of the county court’s judgment. The court of appeals concluded that the Whittingtons’ claim regarding the county court’s original judgment in the condemnation proceeding was not ripe when the Whittingtons filed the declaratory judgment action. Therefore, the court of appeals concluded that the district court did not have jurisdiction over those claims, and vacated the district court’s judgment dismissing the case.

Sovereign Immunity: City of Dallas v. Kenneth Reed, No. 05-06-01652-CV (Tex. App.—Dallas April 25, 2007). Kenneth Reed contends that his single vehicle motorcycle accident was caused by a two-to-three inch difference in elevation between lanes in the roadway. Reed filed suit against the City of Dallas for the personal injuries he sustained, alleging the elevation constituted a special defect or a premises defect. The city asserted an affirmative defense of governmental immunity and a plea to the jurisdiction. Concluding the difference in elevation was a special defect, the trial court denied the city’s plea to the jurisdiction. The court of appeals also concluded that the difference in elevation was a special defect, and that the trial court did not err when it denied the city’s plea to the jurisdiction. Therefore, the court of appeals affirmed the trial court’s judgment.

Sovereign Immunity: City of Houston v. Southern Electrical Services, Inc., No. 01-06-00180-CV (Tex. App.—Houston [1st Dist.] April 26, 2007). Caddell Construction Co. accepted bids for airport improvements. Southern Electrical Services, Inc. (SES), prepared a bid using the City of Houston’s wage documents, but later learned that the city’s published wage rate was lower than the true prevailing wage rate. SES sued the city for breach of contract and, in the alternative, quantum meruit. The trial court denied the city’s plea to the jurisdiction on the basis that governmental immunity was waived, and the city appealed arguing that: (1) SES failed to plead and could not demonstrate a waiver of the city’s “sovereign/governmental immunity”; (2) SES did not have standing to bring a cause of action for breach of contract, and the trial court should not have granted leave to amend SES’s petition to add Caddell as a plaintiff; and (3) the Department of Labor has exclusive jurisdiction over the alleged underpayment of the prevailing wage rate. The court of appeals overruled the first and second issues, and sustained the third issue. The court of appeals reversed the trial court’s interlocutory order denying the city’s plea to the jurisdiction and remanded the case.

Civil Service: In re City of Lancaster, No. 05-07-00196 (Tex. App.—Dallas April 18, 2007). The City of Lancaster fired David Clopton, a firefighter, for failing to pass a random drug test. Clopton sought a review of that decision under the Civil Service Act. After a hearing examiner overruled the city and ordered reinstatement, the city filed a suit for declaratory judgment seeking to have the hearing examiner’s decision declared invalid. Clopton filed a counterclaim seeking a writ of mandamus directing the city to reinstate him pursuant to the hearing examiner’s order. The trial court issued a writ of mandamus ordering the city to reinstate Clopton, and the city then filed a petition for writ of mandamus in the court of appeals. The court of appeals held that by ordering the city to reinstate Clopton and by issuing a writ of mandamus to enforce the judgment, the trial court negated the city’s right to supersede the judgment, stripping the city of its ability to preserve “the status quo of the matters in litigation as they existed before the issuance of the order or judgment…” City of Fort Worth v. Johnson, 71 S.W.3d at 472 (Tex.App.—Waco 2002, no pet.), and thus abusing its discretion. The court of appeals conditionally granted the writ of mandamus ordering, among other things, that the trial court withdraw, vacate, or otherwise dissolve its writ of mandamus.

Annexation: City of Cresson v. City of Granbury, No. 2-06-227-CV (Tex. App.—Fort Worth April 19, 2007). On May 3, 2005, the City of Granbury adopted a resolution directing its staff to prepare a service plan to accomplish a series of five, one-mile annexations stretching along the highway between the City of Granbury and the City of Cresson. The entire area described in the resolution began at the then-existing city limits of Granbury and terminated at Cresson’s then-existing extraterritorial jurisdiction (ETJ). After Granbury passed the resolution, several landowners included within the disputed tracts petitioned for their land to be included within Cresson’s ETJ. On June 3, 2005, before the Granbury City Council could vote on the resolution’s proposals, Cresson adopted and approved four ordinances accepting the landowners’ petitions, expanding Cresson’s ETJ accordingly. On June 21, 2005, Granbury adopted the resolution’s sequential annexation proposals. Cresson filed suit seeking a declaration that the final four annexations adopted by Granbury are void because the disputed tracts were already in Cresson’s ETJ. Granbury filed an amended answer and counterclaim seeking to have all of Cresson’s ETJ expansion ordinances declared void, and the parties filed competing motions for summary judgment. The trial court granted Granbury’s motion, and signed a final judgment ordering that Cresson’s ETJ expansion ordinances are void, and Granbury’s five sequential annexation ordinances are valid. The court of appeals held that Granbury was not entitled to assert jurisdiction over the disputed tracts until final passage of the first of its five sequential ordinances. Under Sections 42.022(c) and 43.051 of the Local Government Code, Granbury did not acquire any ETJ in the Disputed Tracts until its first annexation was complete. TEX. LOC. GOV’T CODE §§ 42.022(c), 43.051; City of Longview, 657 S.W.2d at 431 & n.2 (Tex.1983); Boerne, 61 S.W.3d at 576 (Tex.App.—San Antonio 2001); cf. Universal City, 514 S.W.2d at 70-71 (Tex.Civ.App.—Waco 1974.) The court of appeals reversed the summary judgment in favor of Granbury and rendered summary judgment in favor of Cresson.

Sovereign Immunity: Scott R. Bell, et al. v. City of Grand Prairie, No. 05-03-01749 (Tex. App.—Dallas April 19, 2007). Scott R. Bell and other firefighters for the City of Grand Prairie sued the city for violating their seniority pay rights under Chapter 143 of the Texas Local Government Code. The appellants contended that the city’s immunity from suit was waived by the “plead and be impleaded” language in section 51.075 of the Texas Local Government Code and the city’s charter. The trial court held that under Tooke v. City of Mexia, the “plead and be impleaded” language and similar provisions in the city charters were insufficient to waive the city’s immunity. Tooke, 197 S.W.3d 325, 342 (Tex. 2006) (holding “plead and be impleaded” language is insufficient to waive governmental immunity). The city filed a plea to the jurisdiction asserting governmental immunity from suit, which the trial court granted, dismissing appellants’ suit. The appellants sought an injunction requiring the city to pay appellants in accordance with Section 143.041 of the Texas Local Government Code, which requires non-discrimination in the payment of seniority and longevity pay. The court of appeals concluded the appellants’ claims for declaratory judgment and injunctive relief requiring the city to comply with Section 143.041 in the future are not barred insofar as they request relief for future events and do not seek monetary damages. The court of appeals reversed the trial court’s judgment in favor of the city and remanded the cause to the trial court.

Sovereign Immunity: Daryl Dwayne Smith, Stacy Schnell, and Rose Mary Smith, Individually and for the Estate of Robert W. Smith v. City of Galveston, No. 14-05-00926-CV (Tex. App.—Houston [14th Dist.], April 19, 2007). Appellants appealed the trial court’s decision granting the City of Galveston’s plea to the jurisdiction based on sovereign immunity, arguing that the court erred in holding that the operation of the Port of Galveston by the city constituted a governmental function under the Texas Tort Claims Act (TTCA), rather than a proprietary one. The court upheld the dismissal, holding that: (1) the city’s charter defines the port as a “public utility,” which is a function covered by the TTCA, and (2) the Texas Transportation Code clearly enumerates certain actions, such as the City of Galveston’s port activities, as governmental functions.

Sovereign Immunity: City of McAllen v. McAllen Police Officers Union, No. 13-07-0214-CV (Tex. App.—Corpus Christi-Edinburg, April 13, 2007). The court held that the ballot propositions for charter amendments proposed by the city were misleading, and that overturning the injunction against the city would irreparably harm the plaintiffs. The city also filed a plea to the jurisdiction, arguing that the trial court had strictly limited jurisdiction over a suit involving an election, which is restricted to situations in which there would be time to implement a remedy without delaying the election. The court held that there was sufficient time for the trial court to act in this situation without delaying the election. The court also held that the plaintiffs showed that injunctive relief was appropriate in this case since it may provide a remedy that cannot be adequately obtained through an election contest. Finally, the court held that the matter was not moot because it fell within the “capable of repetition, yet evading review” exception to the mootness doctrine. The court affirmed the order of the trial court denying the city’s plea to the jurisdiction and the order granting the temporary injunction.

Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion No. GA-0494 (Bidding of Lease Purchase Agreements): concludes that lease-purchase contracts entered into under the Local Government Code, including the services of a financial consultant in the contract, must be competitively bid.

Opinion No. GA-0536 (Incompatibility): concludes that, because the city administrator has supervisory authority over the assistant chief of police, and a leave of absence does not sever an employment relationship, the assistant chief of police is barred by the self-employment aspect of the common-law doctrine of incompatibility from simultaneously serving as city administrator.

Opinion No. GA-0537 (Property Tax Exemption): concludes that whether any property is entitled to a tax exemption is a fact question within the authority of the chief appraiser of the appraisal district to initially determine.

Opinion No. GA-0538 (Incompatibility): concludes that an acting city manager who is subject to an employment agreement with the mayor or the city council is not barred by the common-law doctrine of incompatibility from serving as a member of the governing board of a metropolitan transit authority that includes the city within its service area.

Opinion No. GA-0542 (Abandoned Vehicles): concludes that Transportation Code Chapter 683 does not apply to the disposition of motor vehicles that a county sheriff seizes immediately after the occupants flee the vehicles when stopped by law enforcement. The seized motor vehicles, which are neither held as evidence in a pending case nor ordered to be destroyed or returned to the rightful owners, may be disposed of pursuant to Code of Criminal Procedure Article 18.17 if they are: (1) seized in connection with the enforcement of the state's criminal laws; and (2) not contraband subject to disposition under Code of Criminal Procedure Chapter 59.

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.

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

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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