Municipal Attorney Job Openings:

TML Legal Counsel: The Texas Municipal League (www.tml.org) is an association of over 1,080 cities that provides legal, educational, and legislative services to its members. The TML Legal Services Department is seeking a licensed attorney to fill the position of Legal Counsel (staff attorney).

Under the supervision of the Director of Legal Services, Legal Counsel provides legal advice to city attorneys, city officials, and other persons and groups interested in municipal law; assists with the preparation and presentation of educational programs; prepares handbooks, magazine articles, and other written materials; researches and drafts amicus briefs and attorney general comments; reviews and analyzes legislation and state agency rules; and monitors and testifies, as necessary, before legislative committees and state agencies. Exposure to municipal law is preferred. Salary is DOE/DOQ.

Interested attorneys should e-mail a resume A.S.A.P. to:

Scott Houston
Director of Legal Services
Texas Municipal League
shouston@tml.org

Bickerstaff, Heath, Pollan & Carroom, Associate: The Austin law firm of Bickerstaff, Heath, Pollan & Carroom (www.bickerstaff.com) 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 should contact:

Kristine Patrick, Administrator - Client Services & Human Resources
Bickerstaff, Heath, Pollan & Caroom, L.L.P.
(512) 472-8021

2006 South Padre Conference: The TCAA Summer Conference in South Padre Island was a great success with over 250 attendees! To view an attendee list, please go to www.texascityattorneys.org.

Thanks again 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

2006 Fall Conference in Austin: The TCAA Fall conference will be held in conjunction with the TML Annual Conference on October 26, 2006, at the Austin Convention Center. Look for registration information later this summer! Topics will include: (1) recent state and federal cases; (2) local regulation of sex offenders; (3) railroad quiet zones; (4) vacating city streets; (5) civil service update; and (6) ethics. Thanks to our Fall Conference Sponsors:

• Joe K. Longley, Attorney at Law
• Banowski & Levine, P.C.

Please contact Scott Houston if you are interested in a sponsorship opportunity for the Fall conference.

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

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

CORRECTION FROM LAST MONTH: 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, but held that a participating city may NOT receive expense reimbursement for such a review.

Texas Public Information Act: City of Waco, Texas v. Greg Abbott, No. 07-05-0067-CV (Tex. App. – Amarillo, May 31, 2006). The Waco Tribune submitted a Public Information Act (Act) request for copies of forty-two arrest warrant affidavits filed by a former city police officer. The City of Waco sought to withhold certain information contained in the affidavits under Section 261.201 of the Family Code. However, the Attorney General (AG) opined that Article 15.26 of the Code of Criminal Procedure applied. Thus, the information may not be withheld from disclosure. The trial court granted the AG's motion for summary judgment and upheld the AG's opinion. The appeals court affirmed.

Takings: Jimmy Lee Sweed v. City of El Paso, No. 08-05-00149-CV (Tex. App. – El Paso, May 25, 2006). Sweed filed suit against the City of El Paso, alleging that the city’s foreclosure on his property due to delinquent taxes was a taking. The city filed a plea to the jurisdiction and moved to dismiss asserting that the case was not ripe because Sweed still owned the property and foreclosure proceedings had not been initiated. The trial court granted the city’s motion, and the appeals court affirmed.

Takings: Wiegand Hermanos, Perforadores, S.A. v. City of Lockhart, No. 01-05-00311-CV (Tex. App. – Austin, May 19, 2006). The City of Lockhart originally filed a lawsuit against Wiegand, a Mexican corporation, claiming an unauthorized subdivision of real property. Wiegand filed a counterclaim for conversion and an unconstitutional taking of the excess dirt and gravel leftover from the city’s installation of a pipeline across its property. The district court granted summary judgment in favor of the City as to Wiegand’s takings claim. In a Memorandum Opinion, the appeals court affirmed the granting of summary judgment, holding that the city did not have the requisite intent under constitutional takings jurisprudence because it acted within the procedures agreed upon in a contract to remove the excess dirt and gravel.

Sovereign Immunity: Paula Construction, Inc. v. City of Lytle, No. 04-12-17186-CV (Tex. App. – San Antonio, May 3, 2006). Paula Construction filed a breach of contract lawsuit against the City of Lytle for failure to compensate the company for removing sludge from two of the city’s wastewater treatment ponds. The trial court dismissed the case, holding that it lacked jurisdiction based on the city’s sovereign immunity from suit. In a Memorandum Opinion, Justice Speedlin held that the “sue and be sued” language in Local Government Code Section 51.013 constituted an unambiguous waiver of sovereign immunity in accordance with Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970).

Indemnity: City of Brownsville, Oklahoma Municipal Power Authority, and AEP Texas Central Company v. Golden Spread Electric Cooperative, Inc., No. 05-05-01150-CV (Tex. App. – Dallas, May 17, 2006). Golden Spread Electric Cooperative filed a lawsuit against AEP, Texas Central Company (TCC), the City of Brownsville, and the Oklahoma Municipal Power Authority (OMPA), arguing that neither the city nor OMPA validly exercised their right of first refusal in relation to a contract for the sale of TCC’s 7.81% ownership of an electrical generating facility to Golden Spread. The district court granted Golden Spread’s motion for summary judgment, which asserted that neither the city nor OMPA could exercise its right of first refusal without violating state law in relation to the agreement’s indemnity provisions. The appeals court held that the indemnity provision was tangential to the main agreement, could be severed out due to the agreement’s severability clause, and that the city unequivocally accepted the terms and conditions of Golden Spread’s offer to purchase, thus validly exercising its right of first refusal.

Public Information Act: Houston Municipal Employees Pension System v. Greg Abbott, Attorney General of Texas, No. 06-05-00055-CV (Tex. App. – Texarkana, May 9, 2006). The Houston Municipal Employees Pension System (HMEPS) attempted to withhold certain information from the news media relating to pension fund participants. The attorney general’s office declared that HMEPS must release some of the information, while some the information could be properly withheld. HMEPS sought judicial direction on the decision that it had to produce: (1) records showing the pay and bonuses of HMEPS employees; and (2) schedules disclosing pension payments to HMEPS participants. The district court agreed with the attorney general’s office that the information must be released. The court of appeals overruled the district court decision, citing Article 6243h, Section 26(a).

Municipal Utility Districts: Save Our Springs Alliance, Inc. and William G. Bunch v. Lazy Nine Municipal Utility District, No. 06-05-00058-CV (Tex. App. – Texarkana, May 11, 2006). Save Our Springs Alliance (SOS) filed suit against the Lazy Nine Municipal Utility District alleging that the bill creating the district was unconstitutional because of: (1) inadequate notice; and (2) an unconstitutional delegation allowing Lazy Nine to create additional districts within its boundaries. The trial court found that the bill was constitutional, awarded $294,000 in attorneys fees to Lazy Nine, and sanctioned SOS’s attorney for bringing a frivolous lawsuit filed for an improper purpose. The court of appeals held that SOS had standing and that the lawsuit was neither frivolous nor filed for an improper purpose. Additionally, it held that the trial court did not abuse discretion in its awarding of attorney’s fees to Lazy Nine.

Sign Ordinances: City of Corpus Christi v. Yehuda Azoulay, No. 13-04-592-CV (Tex. App. – Corpus Christi, May 4, 2006). The city and the city’s zoning board of adjustment argued that the district court abused its discretion in its review of the board’s decision that a three-dimensional shark on a building constituted a sign in violation of the city’s zoning ordinance, and that the court erred in substituting its judgment for that of the board. The appeals court held that the language of the ordinance was unambiguous and correctly interpreted by the trial court, and that there was therefore no abuse of discretion.

Sovereign Immunity: City of Elsa v. M.A.L., F.B., and A.G., No. 13-05-509-CV (Tex. App. – Corpus Christi, May 11, 2006). Three city employees sued the city for improper disclosure of information to the media in violation of the Texas Medical Practice Act (Act) after their positive, random drug test results and subsequent resignations appeared on the local news. The city brought an accelerated interlocutory appeal contending that the trial court erred in denying the city’s plea to the jurisdiction, in which the city argued its immunity from suit under the Act, as well as: (1) the appellee’s inability to seek monetary damages for alleged constitutional violations; and (2) lack of standing to assert their equitable claims. The court held that the language in the city charter stating that the city may “sue and be sued” constituted a waiver of governmental immunity, and that though the appellees could not seek monetary damages for constitutional violations, that did not affect the trial court’s jurisdiction.

Personnel: Larry Young v. City of Corpus Christi, No. 13-03-00559-CV (Tex. App. – Corpus Christi, May 18, 2006). Police officers appealed a summary judgment on their case contesting the city’s methodology and practices in determining the number of hours in a standard “workweek,” their regular rate of pay, overtime hours and pay, and calculation and crediting of vacation and sick time. The officers argued that the summary judgment ruling should be overturned and the case examined de novo. The court affirmed the summary judgment for the original twenty-one plaintiffs based on the cases having the same “nucleus of facts.” However, the summary judgment was reversed and remanded for the 222 officers who were added to the case after the trial court’s ruling, holding that there was insufficient identity of parties for res judicata.

Public Information Act: Ivo Nabelek v. Clarence O. Bradford, Robert Hurst, and the City of Houston, No. 14-05-00024-CV (Tex. App. – Houston [14th Dist.], May 16, 2006). The court held that the city’s refusal to provide an inmate with portions of his file regarding his offense under Texas Government Code Section 552.028 was not a violation of the inmate’s right to due process, right to equal protection under the law, First Amendment rights, or Sixth Amendment rights. While the inmate raised facial challenges to the Public Information Act, the challenges were not raised in previous actions, and therefore were not considered by the court.

Whistleblower Act: Arturo Flores v. Town of Combes, No. 13-04-00616-CV (Tex. App. – Corpus Christi, April 13, 2006). In this Whistleblower Act case, the court reversed the trial court’s grant of summary judgment in favor of the city. The court held that the trial court had 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.

Water Rights: City of Marshall and TCEQ v. City of Uncertain, et. al., No. 03-1111 (Tex. Sup. Ct. – June 9, 2006). The City of Uncertain and others sought review of a Texas Commission on Environmental Quality decision that the Water Code mandated approval of an amendment to the City of Marshall’s water rights permit without a contested case hearing. The court concluded that Water Code Section 11.122(b) does not mandate issuance of Marshall's water rights amendment without the assessment of other substantive criteria imposed by the Water Code and TCEQ rules. Persons affected by the substantive criteria may be entitled to notice and a hearing to determine the proposed amendment's effect, or it may be that TCEQ could determine from the application that the criteria are not impacted and a hearing is not necessary.

Sovereign Immunity: City of Grapevine v. Sipes, No. 04-0933 (Tex. Sup. Ct. – June 16, 2006). The court held that a city’s implementation of the decision to install a traffic signal was a discretionary act. Therefore, Section 101.060(a)(1) of the Texas Civil Practices and Remedies Code applied, granting the city sovereign immunity against tort claims during the period between the decision to install a traffic signal and the installation of the traffic signal.

Sovereign Immunity: City of Houston v. Southern Electrical Services, Inc., No. 01-06-00015-CV (Tex. App. – Houston [1st Dist.], June 9, 2006). The City of Houston appealed the trial court's order denying the city's plea to the jurisdiction, which asserted that the trial court did not have subject matter jurisdiction over the claim asserted by Southern Electrical Services, Inc. because: (1) SES had failed to plead and could not demonstrate a waiver of the City's sovereign immunity; and (2) SES did not have standing to bring a cause of action for breach of contract. Both the trial and appeals courts denied the city’s plea to the jurisdiction.

Recreational Use: William Russell v. City of Fort Worth, No. 2-05-191-CV (Tex. App. – Fort Worth, May 18, 2006). Russell sued the city after he was injured when he fell over the edge of a twenty-five foot wall at the Fort Worth Water Gardens. The court upheld the trial court’s dismissal for want of jurisdiction, and also upheld the decision that, under the recreational use statute, the city had no duty to warn him of, or alleviate, a dangerous condition.

Personnel: Brian Meroney v. City of Colleyville, No. 2-05-195-CV (Tex. App. – Fort Worth, May 25, 2006). Meroney originally filed a lawsuit against the City of Colleyville seeking an injunction preventing the city from disseminating false information concerning his work history after he resigned as a city firefighter. He also sought monetary damages from Assistant Fire Chief Jones for defamation and intentional infliction of emotional distress. The trial court dismissed the suit against the city for lack of jurisdiction and dismissed the suit against Jones under the election of remedies doctrine pursuant to Section 101.106(a) of the Texas Tort Claims Act (TTCA). The appeals court affirmed the trial court’s dismissal of claims against the city on the grounds that governmental immunity is not waived under the TTCA for an intentional tort, and because injunctive relief can only be granted when dealing with a specific official, not the city in general. Immunity was also granted to the claims against Assistant Chief Jones in his official capacity because the city’s immunity from suit and liability for an intentional was not waived. However, Justice Livingston held that the TTCA’s election of remedies provision in Section 101.106 does not require a dismissal of appellant’s claims against Assistant Chief Jones in his individual capacity since the claim against the City was not technically a TCAA claim.

Sovereign Immunity: Michael Miller v. City of Lewisville, No. 2-06-018-CV (Tex. App. – Fort Worth, May 25, 2006). City officials seized a trailer purchased by the Miller at an auction that was overseen by the city because they learned that the trailer had been stolen. Miller originally brought suit against the city claiming a taking, negligence, breach of contract, breach of warranty of title, fraud, and joint enterprise. The trial court granted the city’s plea to the jurisdiction, and the decision was appealed. The appeals court held that, even if the city’s oversight of the auction could be construed as a taking, the element of that cause of action that necessitates the property being taken for a public use was not satisfied. Further, the appellants did not plead the existence of a contract between themselves and the city, or any other facts attempting to bring their other claims within the exceptions to governmental immunity under the Texas Tort Claims Act.

City of Arlington v. Robert Moore and National American Insurance Company, No. 2-05-453-CV (Tex. App. – Fort Worth, June 1, 2006). In May 2001, the City of Arlington hired a company to replace the lamps in a city-owned ballpark’s light poles. The company’s electrician, Robert Moore, was shocked and seriously injured while trying to replace the lamps. He filed suit against the city, alleging that it had actual knowledge of the defects in the system, and therefore was subject to tort liability under the limited exceptions in the Texas Tort Claims Act (TTCA). The city’s plea to the jurisdiction was denied by the trial court. To prove liability for a premises defect under the TTCA, Moore must prove that the defendant had actual knowledge of the dangerous condition. In a memorandum opinion, the appeals court held that, because the city was informed that the pole in question was unsafe two weeks before Moore was shocked, the trial court’s ruling is affirmed.

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 - 431: Concludes that a city may amend an ordinance only by adopting an act of equal dignity. Thus, a city that adopts its budget by ordinance may not amend the budget by adopting a resolution, motion, or order. The opinion also concludes that a city council may expend funds only in strict compliance with an adopted budget "except in an emergency," but may change the budget "for municipal purposes."

Opinion No. GA - 433: Concludes that an amendment to a city charter that purports to grant authority to the city to amend its charter by ordinance is void because it is inconsistent with the Texas Constitution.

Opinion No. GA - 434: Concludes that the El Paso Water Utilities Public Service Board is not authorized to establish an impact fee for water and wastewater infrastructure for new development in the City of El Paso and its extraterritorial jurisdiction. Rather, only the city council is authorized to do so by Chapter 395.

Opinion No. GA - 435: Concludes that a reserve peace officer may not wear his official uniform and display the insignia of an official law enforcement agency while working as a private security officer licensed by the Texas Private Security Board.

Opinion No. GA - 439: Concludes that a building official may accept a plat or plan only if it is sealed by a professional engineer but may "rely" on a professional engineer's seal only for the representations that the plat or plan was prepared by a professional engineer who endeavored to comply with all federal, state, and local requirements.

Opinion No. GA - 440: Concludes that the Texas Department of Transportation may install, or permit a city to install, red-light cameras on state highway rights-of-way to monitor compliance with traffic-control signals for the purpose of enforcing traffic laws on state highways.

Opinion No. GA - 441: Concludes that Local Government Code Section 253.005 governs the lease of city-owned mineral property.

Special Note: The City of Bryan is seeking amicus support on an annexation service plan appeal. If your city is interested in participating, please contact Michael Cosentino, City Attorney, at 979-209-5152 or mcosenti@bryantx.gov.

Annexation: Authority of a type A general law municipality to annex land outside its territorial jurisdiction, RQ-0480-GA, Texas attorney general’s office. TML and TCAA argued that Local Government Code Sections 53.001 and 43.901 worked to validate an annexation by a general law city that extended beyond the city’s extraterritorial jurisdiction, and that the courts are the proper forum to challenge the validity of an annexation.

Substandard Buildings: City of Jacksboro, Texas v. Perry Teague, No. 06-0389 in the Texas Supreme Court. The principal issue in this case is whether a district court lawsuit contesting a city’s substandard building demolition order should be considered as a petition for a writ of certiorari, as required under Texas Local Government Code Section 214.0012. The position of the city, which was supported by an amicus brief from TML and TCAA, as well as the Texas Attorney General’s office, is that a district court lawsuit does not act as a proper plea to the jurisdiction, as the lower court held. The city’s petition for review was filed on May 15, 2006, and a decision is pending.

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.

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