Two Wrongs Didn’t Make it Right: The Continuing Saga of Collection Service Contracts, Bonnie Lee Goldstein, Bonnie Lee Goldstein, P.C.: What the legislature started in 2001, it failed to correct by the passage of S.B. 782 in 2003. More specifically, S.B. 782, effective June 18, 2003, amends Article 103.0031 of the Texas Code of Criminal Procedure by expanding the collection services for which a county and municipality can contract, as well as establishing new procedures. The most notable amendment, and perhaps the most controversial, is the ability to contract for the collection of amounts in unadjudicated cases, i.e., cases where the defendant has failed to appear in compliance with a lawful summons, a lawful order of a court, as specified in a citation, summons, or other authorized notice. Read more.

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

Eminent Domain: City of Seabrook v. Port of Houston Authority, No. 01-04-00925-CV (Tex. App. – Houston [1st Dist.], May 18, 2006). The Port of Houston sought to condemn property owned by private landowners within the City of Seabrook for the voter-approved Bayport Terminal Project. The landowners objected to the condemnation because the Port failed to obtain the permission of the city to condemn land within the city’s limits. The city intervened and filed a plea to the jurisdiction on the same grounds based on Section 62.106(d) of the Texas Water Code. The court held that the statutory provision at issue is not jurisdictional, and thus not the proper subject of a jurisdictional plea.

Soveriegn Immunity: City of Houston and Harris County v. Tanya Lynn Degner, No. 01-05-00133-CV (Tex. App. – Houston [1st Dist.], May 18, 2006). Note: This is a Memorandum Opinion. Dr. Degner called 9-1-1, telling the operator he had taken several pills and couldn’t stay awake. The car that he was driving subsequently crashed into a fixed object. He was seriously injured, and his wife later asked that he be taken off life support because, also during the 9-1-1 call, he had stated that he “wanted to end his life.” The city issued a death certificate that listed suicide as the cause of death. An investigation revealed that he never made the statement. Dr. Degner’s wife sued the city claiming various financial and mental damages as a result of the listed cause of death based on the use of recording equipment as tangible personal property. The court upheld the city’s pleas to the jurisdiction because the misuse was not of personal property, but rather of information.

Worker's compensation: State Office of Risk Management v. Rachel Herrera, et al and Texas Municipal League Intergovernmental Risk Pool and/or City of Friona, Texas, No. 07-05-00268-CV (Tex. App. – Amarillo, April 11, 2006). City police officer, Jose Herrera, responded to a call for assistance from the Parmer County sheriff's office. In responding, his vehicle collided with that of the fleeing suspect outside of the City of Friona's city limits. SORM disputes its responsibility to make the worker's compensation death benefits payments alleging that officer Herrera was not acting within the scope of his employment with the State, but rather was acting within the scope of his employment with the City of Friona. The Texas Worker's Compensation Commission ruled that SORM was responsible for the payments and SORM appealed 42 days after the decision became appealable. The trial court dismissed the appeal for want of jurisdiction. The appeals court reversed and remanded the case stating that SORM had 40 days to appeal rather than 30 days because at issue was a matter of compensability rather than coverage.

Inverse Condemnation Jurisdiction: City of Amarillo v. Ron Dyer and Jo Dyer, No. 07-05-00325-CV (Tex. App. – Amarillo, April 13, 2006). Ron and Jo Dyer alleged that the City of Amarillo's operation of its waste water treatment plant contaminated the groundwater they use on their property. The Dyers alleged the contamination constituted a taking by the city. The city filed a plea to the jurisdiction claiming, among others, that the Dyers’ claims were not ripe. The trial court denied the city’s plea, and the appeals court affirmed. The appeals court opined that: (1) the lower court did not err in allowing testimony from Dyer; and (2) there is nothing contingent about the injuries claimed by the Dyers.

Jurisdiction: Karen Hall v. The City of Bryan, Texas, No. 10-05-00417-CV (Tex. App. – Waco, April 19, 2006). The court denied the City of Bryan's motion to dismiss for want of jurisdiction. The court opined that the trial court's order granting the City's Motion for Summary Judgment was interlocutory because two parties had intervened as pro se intervenors and the City's motion appeared to have been directed only to Hall. Therefore, the order did not finally dispose of the case.

Railroad Commission Jurisdiction: CenterPoint Energy Entex v. Railroad Commission of Texas, Victor Carillo, Elizabeth A. Jones, Michael Williams, City of Tyler and State of Texas, No. 03-04-00731-CV (Tex. App. – Austin, April 21, 2006). This opinion replaces a withdrawn and vacated opinion from February 24, 2006. The court held that the Railroad Commission has the authority to conduct a retroactive review of purchased gas agreement clause charges and order refunds. The court also held that a participating city may receive expense reimbursement for the review, even though the court held such a review is not considered a ratemaking proceeding.

Towing: Aaron Herman v. City of Dallas, et al., No. 05-05-00875-CV (Tex. App. – Dallas, April 12, 2006). This case was brought concerning the constitutionality of Dallas’ towing ordinance, which requires vehicles to be moved after twenty-four stationary hours on a public street. Plaintiff argued that this constituted an “illegal seizure.” The court did not rule on the substance, but rather upheld the trial court’s summary judgment for the city, based on the statute of limitations.

Sovereign Immunity: Dwight Dequire, Michael Felini, Terrance Hopkins, and Leroy Quigg v. City of Dallas, No. 05-04-01865-CV (Tex. App. – Dallas, April 18, 2006). This opinion replaces a withdrawn and vacated opinion from March 3, 2006. The defendants sued the city for breach of contract and a related declamatory judgment. The City of Dallas filed a plea of governmental immunity to the jurisdiction, and asked for attorney’s fees. Even though this was not a specific counterclaim, the court held that it operated as such and that it waived the city’s governmental immunity. The case was reversed and remanded for further proceedings.

Whistleblower: Arturo Flores v. Town of Combes, Texas, No. 13-04-00616-CV (Tex. – App. Corpus Christi, April 13, 2006). In this case brought by the Town of Combes police chief under the Whistleblower Act, the court reversed the trial court’s grant of summary judgment in favor of the city. The court held that the trial court erred in granting summary judgment for the city because the city had not presented evidence conclusively establishing that the city’s governing body would have terminated the chief “based solely on information, observance, or evidence…not related” to the chief’s reports of alleged violations of the law by the city’s mayor and secretary.

Opinion No. GA - 425: Concludes that neither the state nor its political subdivisions may regulate international border crossings by persons under the age of 18 years, but may restrict persons under the age of 18 years from being in Texas areas near the Texas-Mexico border by creating a narrowly tailored law that furthers a compelling governmental interest.

Opinion No. GA - 429: Concludes that the Prompt Payment Act, rather than the payment deadlines set by a municipally-owned utility, governs a school district’s payment of a bill.

Opinion No. GA - 431: Concludes that a city may amend an ordinance only by adopting an act of equal dignity. A city that adopts its budget by ordinance may not amend the budget by adopting a resolution, motion, or order.

Opinion No. GA - 431: Concludes that an amendment to a home-rule city charter that purports to grant authority to the city to amend its charter by ordinance is void because it is inconsistent with Article XI, Section 5, of the Texas Constitution, which requires all charter amendments to be approved by a majority of qualified voters in the city.

Job Opening: The Austin law firm of Bickerstaff, Heath, Pollan & Carroom is looking for an attorney to join their municipal practice group. The position requires good research and writing skills, experience advising city governments, and a desire to work in a team-oriented private practice setting. Interested attorneys can visit with representatives from Bickerstaff at the TCAA South Padre Conference, or contact:

Kristine Patrick, Administrator - Client Services & Human Resources
Bickerstaff, Heath, Pollan & Caroom, L.L.P.
816 Congress Ave, Suite 1700
Austin, Texas 78701
(512) 472-8021

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
1821 Rutherford Lane, Suite 400
Austin, Texas 78754
www.texascityattorneys.org