TCAA NEWS
(Volume 3, Issue 5 – May 2008)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

TCAA News Note: Due to the timing of next month’s TCAA summer conference, the next TCAA News will be a combined June/July edition issued in mid-July.

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 TCAA South Padre Conference – Still Time to Register! 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

Congratulations Summer 2008 TCAA Galen Sparks Award Recipient: TCAA’s Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney is intended to recognize and honor a current or former assistant city attorney for significant and distinguished career achievements in the field of municipal law. Congratulations to this year’s recipient:

Brenda McDonald, Deputy City Attorney, City of Irving

Congratulations Summer 2008 TCAA Municipal Certification Recipients: TCAA’s Municipal Certification Program recognizes attorneys who demonstrate advanced knowledge and experience in municipal law. The program includes separate certifications for municipal prosecutors, municipal civil law attorneys, and office certifications. Congratulations to the following recipients:

Individual Civil Law Merit Certification in Municipal Law

  • Harvey Cargill, Jr., City Attorney, College Station
  • Carla Robinson, First Assistant City Attorney, College Station
  • Mary Ann Powell, First Assistant City Attorney, College Station
  • Angela DeLuca, Assistant City Attorney, College Station
  • Stephan L. Sheets, Sheets & Crossfield, P.C.
  • Charles D. Crossfield, Sheets & Crossfield, P.C.
  • Jerikay Gayle, Sheets & Crossfield, P.C.
  • Donald J. Childs, Sheets & Crossfield, P.C.
  • Michael C. Hayes, City Attorney, Kerrville
  • Mary Kay Fischer, City Attorney, Corpus Christi
  • Kathryn H. Davis, City Attorney, Killeen
  • Traci S. Briggs, Deputy City Attorney, Killeen
  • Holli Clements, Assistant City Attorney, Killeen
  • Jerris Penrod Mapes, Assistant City Attorney, Killeen

Individual Municipal Court Prosecutor Merit Certification in Municipal Law

  • Susan Camp-Lee, Sheets & Crossfield, P.C.
  • Rodney D. Patten, Assistant City Attorney, Plano

Legal Office Merit Certification in Municipal Law

  • Sheets & Crossfield, P.C.
  • City of College Station Legal Department
  • City of Killeen Legal Department

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

Takings: AVM-HOU, Ltd. v. Capital Metro. Transp. Auth., No. 03-07-00566-CV, in the Third Court of Appeals. This case involves a condemnation award for an adult business lessee where the condemned property was specially zoned for adult businesses. The adult business argued that it could not move its business due to zoning and various other issues and therefore the condemner owed both the value of the lease and business value damages for the life of the lease. The trial court dismissed the adult business’ request for business value damages and the business appealed. TML and TCAA filed an amicus brief that argued that, among other things, that the trial court should be affirmed because business value damages are not appropriate where the entire piece of real property is condemned and the fair market value awarded. The amicus brief was filed on April 25, 2008 and oral argument is scheduled for May 21, 2008.

Civil Service: RQ-0678-GA; Application of subsection 143.014(c) of the Texas Local Government Code. This request asks whether the last sentence of subsection 143.014(c) nullifies assistant fire chief appointments made prior to the election date of collective bargaining. TML and TCAA filed comments and argued that the last sentence of subsection (c) acts to lift the restriction on the number of assistant chiefs that may be appointed after a city adopts collective bargaining, and does not invalidate a police or fire chief’s authority to continue appointing assistant chiefs after collective bargaining is adopted.

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.

Utility: City of Celina and the Texas Commission on Environmental Quality v. Dynavest Joint Venture., No. 03-07-00199-CV (Tex. App.—Austin April 24, 2008). Dynavest sued the city after TCEQ expanded the city’s certificate of convenience and necessity to include Dynavest’s property in the extraterritorial jurisdiction of the city. Dynavest argued that under section 13.2451 of the Texas Water Code, the city was required to get Dynavest’s permission before the city’s certificate could extend beyond the city limits. TCEQ filed a motion to dismiss, arguing that Dynavest did not have a cause of action under the Declaratory Judgment Act and that the case should be dismissed because the statute did not apply. The trial court held that Dynavest had a cause of action and that it would not determine whether the statute applied until it reached the merits. The court of appeals affirmed, holding that the trial court was not incorrect to refuse to decide whether the statute applied when determining its jurisdiction.

Civil Rights: James Lindquist v. City of Pasadena, No. 07-20013 (5th Cir. April 15, 2008). The Lindquists sued the city after being denied a license to open a used car dealership. The Lindquists argued that the licensing ordinance was unconstitutional on its face and as applied to them because it violated their right to equal protection and due process. The trial court dismissed the Lindquists’ complaint for failure to state a claim. The court of appeals reversed and remanded the equal protection claim to the trial court, holding that the Lindquists did not have to allege ill will of the city because their equal protection claim was not based on selective enforcement. The court of appeals affirmed the trial court’s ruling.

Regulatory Taking: Houston Professional Towing Association v. City of Houston, No. H-06-2174 (S.D. Tex., 2008). The towing association sued the city, arguing that the city’s towing program was preempted by federal and state law, was unconstitutional, and worked a regulatory taking. Under the towing program, the city contracts with certain towing companies to perform non-consent tows at a regulated price, but allows any company to perform consent tows as long as the company does not interfere with the safety aspects of the program. The district court held that: (1) the city’s towing program is not preempted; (2) the ordinances are not unconstitutional; and (3) the ordinances do not work a regulatory taking because the rates are contractual.

Annexation: Town of Fairview v. H. Roger Lawler, No. 05-07-01617-CV (Tex. App.—Dallas May 2, 2008). Lawler sued the city after it annexed his property under Section 43.033 of the Local Government Code. Lawler argued that the annexation was void under Section 43.141 because the city had re-annexed the land after the property had been disannexed, and that it was not within the city’s three-year plan. The city argued that the land was properly annexed, that the annexation could only be disputed by a quo warranto proceeding, and that Section 43.141 did not apply because the land was not disannexed for failure to provide services under Section 43.141, but was disannexed under section 43.033. The city filed a plea to the jurisdiction on these issues, which the trial court denied. In the interlocutory appeal, the court of appeals held that Lawler did not have standing to sue because a quo warranto proceeding was the only proper procedure to dispute the annexation, and that the ten year waiting period for re-annexation does not apply in every disannexation, but only applies when property is disannexed under Section 43.141.

Sovereign Immunity-Tort: City of Dallas v. Keisha Heard et. al., No. 05-07-00762-CV (Tex. App.—Dallas April 22, 2008). Keisha Heard and others sued the city after a gorilla in the city zoo escaped and attacked them. Heard argued that the conditions of the cage in which the gorilla was kept were a premises defect, and that the gorilla was personal property that caused injuries under the Texas Tort Claims Act. The city filed a plea to the jurisdiction, which the trial court denied. Heard argued on appeal that: (1) the gorilla’s habitat was incorrectly constructed; (2) cameras were provided but did not function correctly; (3) more safety features should have been added to the habitat; (4) other equipment in the city failed; (4) the gorilla was tangible personal property when it attacked the individuals; and (5) keeping a wild animal subjects the city to strict liability. The court of appeals held that the trial court properly denied the plea to the jurisdiction on some issues including: (1) improper construction that a discretionary design can be a premises defect; (2) malfunctioning equipment can be a premises defect; (3) the gorilla could arguably be considered personal property that was “used” by the city; and (4) a city is strictly liable for keeping a wild animal because a private person would be strictly liable for any damages caused by the person’s wild animal. The court of appeals held that the trial court improperly denied the plea to the jurisdiction, and that the city was not liable for the non-use of a tranquilizer and the discretionary decision not to add more safety features to the gorilla habitat. The court of appeals remanded the case for trial on the merits.

Land Use: Howeth Investments, Inc. v. City of Hedwig Village, No. 01-05-00904-CV (Tex. App.—Houston April 17, 2008). A developer sued the city under Section 1983 after the city failed to act on the developer’s plat applications. The trial court entered a take-nothing judgment against the developer. The developer argued that the city’s ordinance prohibiting flag or key shaped lots was unconstitutionally vague and that its plats should be automatically approved because the city did not take action within the required time frame. The court of appeals held that the trial court’s holding denying relief to the developer was proper because the plats were not in the form required for filing with the county clerk or for approval by the city, and that the city’s requirement that no lots could be key or flag shaped unless such was “unavoidable” was not unconstitutional. The court of appeals also held that the developer’s challenge to the trial court’s judgment was improper since the developer did not challenge the trial court’s findings of fact and conclusions of law.

Land Use: Continental Homes of Texas, L.P. v. City of San Antonio, No. 04-07-00038-CV (Tex. App.—San Antonio, April 16, 2008). The city sought an injunction against a developer to keep the developer from removing trees from the developer’s land without following the city’s tree ordinance (the ordinance requires a developer to obtain a permit and replant trees somewhere else if certain trees are removed). The trial court granted the city’s injunction. The developer argued that it had vested rights in the development because it was given a vested rights permit by the city before the enactment of the tree ordinance. The court of appeals reversed the trial court’s judgment and rendered, dissolving the injunction and holding that the city’s ordinance did not apply to the developer’s project and that the developer had a vested right in removing trees without a permit.

Land Use: Buffalo Equities, Ltd. v. City of Austin, No. 03-05-00356-CV (Tex. App.—Austin May 9, 2008) (mem. op.). A developer sued the city for a regulatory taking when the developer’s proposed use for an easement on its property was denied by the city because the use did not comply with the city’s zoning restrictions. The city filed a plea to the jurisdiction arguing that the court did not have jurisdiction because the developer had failed to exhaust its administrative remedies. The district court granted the city’s plea to the jurisdiction, holding that it did not have jurisdiction, but also holding that the developer’s use was not proper under the city’s zoning ordinance. The court of appeals affirmed the trial court’s judgment, dismissing the developer’s case for lack of subject matter jurisdiction and affirming the district court’s holdings regarding the merits.

Sovereign Immunity: City of Aspermont v. Rolling Plains Groundwater Conservation Dist., No. 11-07-00009-CV (Tex. App.—Eastland May 8, 2008). The water district sued the city after the city failed to pay fees for water it transported out of the water district. The city filed a plea to the jurisdiction arguing that it was protected by sovereign immunity. The trial court denied the city’s plea. The court of appeals held that the city is immune from past monetary damages but is subject to suit for the enforcement of the water district’s rules and future fees.

Sovereign Immunity-Tort: Carmela Bustillos v. City of Midland, No. 11-07-00038-CV (Tex. App.—Eastland May 8, 2008) (mem. op.). Ms. Bustillos sued the city under the Texas Tort Claims Act after she fell into an uncovered water meter box and sustained injury. Bustillos argued that the city’s immunity was waived under the Act because the uncovered water meter box was a special defect. The city filed a plea to the jurisdiction arguing that the box was not a “special defect.” The trial court granted the city’s plea. The court of appeals affirmed, holding that the box was not a special defect because an ordinary user of the property in question would not encounter the box.

Employment: Amanullah Khan v. Houston NFL Holdings LP, City of Houston, et al., No. 07-20634 (5th Cir. (Tex.) May 8, 2008) (per curiam). Individuals sued the city and others after they were injured in an altercation with security guards at Reliant Stadium. The plaintiffs argued that the security guards were negligently hired since a look at the police personnel files of the guards would have revealed that at least one of the officers had numerous complaints against him. The trial court granted summary judgment to the event holders on the basis that the security guards in question were not negligently hired. The court of appeals affirmed, holding that the security guards were in good standing with the Houston Police Department and that the event holders would not have seen the security guards’ police personnel files under Section 143.089 of the Local Government Code, which provides that such files cannot be released for viewing unless a complaint results in disciplinary action.

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-0625 (Collective Bargaining): concludes that the issue of payroll deduction of association dues is a mandatory subject of bargaining under the Fire and Police Employee Relations Act ("FPERA"), and that a general law city with a population of 10,000 or fewer and that has adopted FPERA has implied authority to provide payroll deductions for association dues.

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.
Texas City Attorneys Association
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