TCAA NEWS
(Volume 4, Issue 6 – June/July 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

TCAA to Fill Board Position on October 22, 2009: Those interested in applying for a place on the Board should fill out an application and return it via e-mail to Scott Houston at legalgovt@tml.org. Application forms are available on the front page of TCAA’s Web site at www.texascityattorneys.org and must be received by 5:00 p.m. on October 9, 2009.

Bill Summaries from Regular Session and Information on Special Session: View the TML Legislative Update at www.tml.org by clicking on “Legislative.”

Summer Conference Video Replay: Miss the South Padre Conference? Here’s your chance to get 10 hours of MCLE credit for just $50! The City of Austin is hosting a video replay of the conference on September 10-11, 2009, in the city’s council chambers. For more information or to register online, please go to http://www.tml.org/ed_tcaa_virtual.asp. Other times and locations are in the planning stages. Look for information shortly!

Save the Date! The TCAA Fall Seminar in conjunction with the TML Annual Conference is tentatively scheduled for October 22, 2009, in Fort Worth. Special thanks to our fall sponsor:

Taylor, Olson, Adkins, Sralla, and Elam, L.L.P.

A link to registration and hotel information will be available soon on the front page of www.texascityattorneys.org. A separate e-mail and printed publicity will be sent to all members when registration is available.

2009 TATOA Conference: The Texas Association of Telecommunications Officers and Advisors (TATOA) 14th Annual Conference will be held in Houston at the Hilton Post Oak Hotel on August 6-7, 2009. "Energize Your Telecommunications" is the theme for the conference, and this year's conference will have a legal and policy track specifically designed for attorneys and technical staff who address communication issues for local governments. The sessions for the legal and policy track will focus on ways for cities to increase revenues and reduce expenses. Visit http://www.tatoa.org to download the brochure and register today!

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

Of special interest, two cities are seeking applicants to fill their city attorney positions:

• Victoria : http://www.watersconsulting.com/download/woer/brochures/169879%20Victoria%20-%20City%20Atty.pdf

• Lubbock : http://www.watersconsulting.com/download/woer/brochures/Lubbock%20-%20City%20Atty.pdf

Articles

Tree Preservation Ordinance Upheld by Fourth Court of Appeals, Frank J. Garza, Davidson & Troilo, P.C. We have all heard the famous poem written by Joyce Kilmer titled “Trees” with the familiar line that reads, “I think that I shall never see, a poem lovely as a tree.” As a result of a recent Fourth Court of Appeals decision, cities have been given an additional tool to protect trees. The Fourth Court of Appeals ruled in Milestone Potranco Development, Ltd. v. City of San Antonio, No. 04-08-00479-CV (Tex. App.¬—San Antonio 2009, no pet.) that the City of San Antonio’s Tree Preservation Ordinance and Streetscape Tree Planting Standards are enforceable against property located in the city’s extraterritorial jurisdiction. The court ruled that the city’s tree ordinance was properly adopted under § 212.002 of the Texas Local Government Code and is permitted to extend to the city’s ETJ based on § 212.003 of the Texas Local Government Code. Read more.

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.

Extraterritorial Jurisdiction: Milestone Potranco Development, Ltd. v. City of San Antonio, No. 04-08-00479-CV (Tex. App.—San Antonio May 27, 2009). Please see the article above for a detailed summary of this case.

Zoning: Rick Barr v. City of Sinton, No. 06-0074 (Tex. June 19, 2009). Pastor Rick Barr, a former convict, started a Christian halfway house ministry through his nonprofit corporation. Its purpose was to offer shelter, biblical instruction, and counseling to nonviolent drug offenders on probation or parole. Barr lived in and taught the men in three houses he owned, all located within a block of Barr’s church in the City of Sinton.

When Barr founded the ministry in 1998, there were no zoning or other restrictions on how he used the homes. The following year, the city council passed an ordinance prohibiting the location of a nongovernmental rehabilitation facility within a thousand feet of a residential area, school, park, or place of worship. The ordinance effectively targeted Barr and ensured that it would be difficult to relocate within the small town. Barr nonetheless continued to run his ministry until 2000, when the police chief complained to the Texas Board of Pardons and Paroles (Board), which in turn refused to renew Barr’s permit.

Barr sued the city under the Texas Religious Freedom Restoration Act (Act), which provides that government “may not substantially burden a person’s free exercise of religion” unless it shows that the application of that burden “is in furtherance of a compelling governmental interest[] and is the least restrictive means of furthering that interest.” See TEX. CIV. PRAC. & REM. CODE § 110.003(a)-(b).

The trial court denied Barr’s request for a temporary injunction, and without approval from the Board, Barr was unable to continue his ministry. The trial court held that Barr violated the ordinance and that the ordinance did not violate the Act. The court of appeals affirmed.

The Supreme Court rejected the city’s argument that strict scrutiny does not apply to zoning ordinances under the Act. It then considered the Act as it applied to Barr’s ministry. First, the Court looked at whether the city’s ordinance burdened Barr’s free exercise of religion under the Act. The city argued it did not because a halfway house does not have to be a religious operation. The court disagreed, noting that this did not mean it could not be religious and concluding that Barr’s ministry met the definition of “free exercise of religion” under the Act in that the ministry was shown in the record as “substantially motivated by sincere religious belief.”

The Court next addressed whether that burden was substantial. The Court emphasized the importance of focusing on the degree to which an individual’s religious conduct is restricted and the ensuing impact on his religious expression by looking at specific facts. The Court concluded that in this case the city’s ordinance substantially burdened Barr’s ministry because it intentionally prevented him from relocating to any alternative place within the city, and even if the city had provided an alternative, that alone would not have disproved substantial burden. The Court rejected the city’s arguments that: (1) the city’s small size made exclusion of the ministry within its limits inconsequential; (2) Barr could have continued his ministry if the men had lived elsewhere separately; and (3) Barr was never charged with a crime.

The Court then turned to the issue of whether the interest promoted by the ordinance justified the substantial burden on exercise of religion. The city asserted that zoning is such an interest because it serves to advance safety, prevent nuisance, and protect children. But the facts regarding the ministry refuted this argument, in that Barr only accepted nonviolent offenders, there were never complaints of disturbance, and the city had failed to enforce the ordinance for over a year after it was adopted.

Finally, the Court considered whether the ordinance was the least restrictive means of furthering the city’s interest. It noted that the ordinance was very broad and that the city had seemingly made no effort to show how it used the least restrictive means of ensuring that religious halfway houses did not interfere with surrounding residents’ safety and well-being.

The Supreme Court held that the ordinance, as applied to Barr’s ministry, violated the Act, and the case was reversed and remanded to the trial court.

Public Employees: City of DeSoto v. Justin White, No. 07-1031 (Tex. June 19, 2009). The DeSoto Police Department suspended an officer, Justin White, following two internal investigations that revealed improper conduct. The city sent a letter to White that met most, but not all, of the requirements specified in Chapter 143 of the Local Government Code. Section 143.057(a) provides that a letter of disciplinary action to a suspended officer must give the officer the ability to “elect to appeal to an independent third party hearing examiner instead of to the commission.” TEX. LOC. GOV’T CODE § 143.057(a). The letter must also state that if the officer appeals to a hearing examiner, the officer waives all rights to appeal to a district court, unless the arbitration panel was without jurisdiction or exceeded its jurisdiction, or if the order was procured by fraud, collusion, or other unlawful means. See TEX. LOC. GOV’T CODE § 143.057(j). The letter sent by the city did not notify White that an appeal to a hearing examiner would limit his ability to seek review with a district court.

After receiving the letter, White elected to appeal the suspension to a hearing examiner. Upon the commencement of the hearing, White complained that the examiner was without jurisdiction to hear the appeal because the city’s letter failed to notify him of the appeal limitation. The hearing examiner offered White an abatement, continuance, and the opportunity to change his election, but White refused all options. As a result, the hearing took place, and the examiner upheld White’s suspension.

White filed suit in district court, contending that the hearing examiner was without jurisdiction to hear his appeal pursuant to Section 143.057(j) of the Local Government Code. The district court granted summary judgment in favor of White and ordered the city to reinstate him and pay his attorney’s fees. The court of appeals affirmed the decision, holding that the notice requirements in Chapter 143 were jurisdictional and substantial compliance with the requirements was not sufficient. The City of Desoto appealed to the Supreme Court of Texas.

The Supreme Court reviewed whether the omission in the disciplinary letter deprived the hearing examiner of jurisdiction to hear the appeal. The Court began its analysis under the presumption that the legislature did not intend to make the notice under Section 143.057(a) jurisdictional, as past decisions indicate the Court’s reluctance to conclude that a statutory provision is jurisdictional because such a conclusion leaves the decisions and judgments of the hearing examiner subject to future attack. See Igal v. Brighstar Info. Tech Group, Inc., 250 S.W.3d 78, 83-84 (Tex. 2008). This presumption, the Court reasoned, could only be overcome by clear legislative intent to the contrary.

In evaluating the legislative intent of the statute, the Court concluded that although the notice provision under Section 143.057(a) is mandatory, that does not necessarily mean that compliance with the statute is jurisdictional. Section 143.057(a) does not provide a specific consequence for noncompliance, whereas other provisions of Chapter 143 provide that the consequence for noncompliance is dismissal of the action. Because dismissal was listed as a consequence elsewhere but not in this particular provision, the Court assumed that the legislature did not intend that a dismissal be the result of noncompliance. The Court reasoned that the reinstatement of an officer in this situation would be troubling given the need for continued public trust in the exercise of the duties of police officers and firefighters.

For the reasons above, the Supreme Court held that the city’s failure to provide the mandatory notice under Section 143.057(a) did not deprive the hearing examiner of jurisdiction to hear White’s appeal. The Court further concluded that abatement was the appropriate remedy because it would allow the city to notify White of his appellate rights without dismissing a case against a potentially unfit officer, and would allow White an opportunity to make an appellate election with full knowledge of the consequences of his choice.

Nuisance: Seymour G. Perkins v. City of San Antonio, No. 04-08-00341-CV (Tex. App.—San Antonio May 20, 2009). In this case, Seymour Perkins, a property owner in the City of San Antonio, appealed a ruling from the trial court upholding an order by the city’s Dangerous Structure Determination Board (“the board”). The board’s order required Mr. Perkins to demolish a building he owned within thirty days, after which time the city would be authorized to abate the nuisance. Mr. Perkins filed a petition for injunctive relief with the trial court, which the court construed as a request for judicial review as provided for by the Texas Local Government Code. The court upheld the board’s ruling. Mr. Perkins appealed the trial court’s decision, arguing that, among other issues: (1) the trial court deprived him of his right to present evidence at the hearing before the court because it held the hearing under the substantial evidence rule; (2) the trial court’s hearing was held without proper notice; and (3) the board’s order is no longer effective.

In considering the issue of the standard of review, the court explained that there are three basic types of standards for reviewing administrative decisions: pure trial de novo, pure substantial evidence, and substantial evidence de novo. In the past, the court held that a trial court reviewing a demolition order must use a substantial evidence de novo review, which allows the court to hear additional evidence at the time of the hearing, regardless of whether it was presented at the original administrative hearing. Wu v. City of San Antonio, 216 S.W.3d 1, 2 (Tex. App.—San Antonio 2006, no pet.). Here, the court disapproved of its earlier ruling in Wu, stating that it had mistakenly cited a statute that did not apply to demolition hearings. Instead, the court held that Section 214.0012(f) of the Texas Local Government Code, which specifically limits the appeal to district court of a decision by a body such as the board to a pure substantial evidence review, was applicable to the situation in this case. As such, the court held that the trial court did not err in its review of the evidence. The court noted in a footnote that the trial court is also permitted to consider whether the proceedings before the board satisfied the requirements of due process, although that information would not be part of the evidence presented at the administrative hearing.

Mr. Perkins also argued that the trial court erred in setting its hearing without giving him either 45 days notice as required by Texas Rule of Criminal Procedure 245 or 21 days notice required by Texas Rule of Civil Procedure 166a. The city argued that Mr. Perkins was entitled only to three days notice under Texas Rule of Civil Procedure 21, which governs application to the court for an order and notice of any related hearing. The court disagreed with the city on this point. Since the hearing in this case is dispositive of a case, the court held that it is effectively a trial setting. The court held that the trial court erred in not providing Mr. Perkins with 45 days notice of the hearing. In another footnote, the court noted that the city may have been able to seek a ruling through a motion for summary judgment that would allow it to decrease the required notice to 21 days under Texas Rule of Civil Procedure 166a.

Mr. Perkin’s argued that the board’s order is void because it ordered him to demolish his structure by a date that was less than 30 days after the order was signed. Texas Local Government Code Section 214.0012(a) provides that the board’s decision becomes final 30 days after the copy of the decision is delivered to the property owner. However, the court held that the order was not void due to lack of jurisdiction or capacity to act, and that the order expressly provided that it was not final until 30 days had elapsed. Mr. Perkins argued further that the order was no longer effective because the demolition was required to be completed by a date that had already passed, and thus no valid order existed permitting the city to demolish the structure. The court disagreed, holding that the order required Mr. Perkins to demolish the house by that date, and authorized the city to do so only if he failed to comply, and therefore the order was still valid.

Because the court held that Mr. Perkins was not provided proper notice of the trial court’s hearing, the court reversed the trial court’s order and remanded the case for a new hearing.

Governmental Immunity – Tort: John McDonald v. City of The Colony, No. 2-08-263-CV (Tex. App.—Fort Worth June 25, 2009). The City of The Colony owned a piece of property, part of which housed the city’s wastewater lift station and part of which was leased to Mr. McDonald for use as a golf course. McDonald alleged that the city’s lift station was being improperly run and was leaking a harmful gas that was causing him headaches, nausea, dizziness, and other ill effects. McDonald closed his golf course due to the harmful gas. McDonald sued the city for nuisance, breach of contract, breach of warranty, inverse condemnation, negligence, gross negligence, negligence per se, premises defect, and fraud. The city filed a plea to the jurisdiction, and the trial court granted the plea as to all claims but breach of contract and inverse condemnation. Mr. McDonald appealed.

Negligence, Negligence Per Se, Gross Negligence Claims—Real Property

Under the Texas Tort Claims Act (TTCA), a city is immune from suit unless the legislature expressly consents to the suit. TEX. CIV. PRAC. & REM. CODE Ch. 101. Immunity applies to a city’s governmental functions and is waived for:

  1. property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
    1. the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
    2. the employee would be personally liable to the claimant according to Texas law; and
  2. personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM.CODE § 101.021. Solid waste removal, collection, and disposal are governmental functions under the TTCA. Id. § 101.0215(a)(6).

Mr. McDonald’s claims for negligence, gross negligence, negligence per se, and premises defect claims all involve solid waste disposal. He argued that the use of the lift station was motor-driven equipment that caused property damage and personal injury. The city argued that Mr. McDonald’s allegation was the non-use of equipment that caused the issues, and therefore the city had not waived its immunity.

The court of appeals held that the lift station is motor-driven equipment under the TTCA and that Mr. McDonald presented sufficient evidence that the use of the lift station caused the damages. The court of appeals reversed the trial court’s grant of the city’s plea to the jurisdiction on the issues of negligence, gross negligence, and negligence per se.

Premises Defect

Mr. McDonald argued that the malfunction and misuse of city equipment caused a premises defect under the TTCA. Under the TTCA, a city is liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Id. § 101.021 (emphasis added). If the claimant is leasing the property in question, the city owes the claimant the duty of an invitee. Id. § 101.022. To recover, an invitee must prove that: (1) a condition of the property posed an unreasonable risk of harm; (2) the city knew of the condition; (3) the city failed to exercise ordinary care in protecting the invitee from the danger; and (4) the dangerous condition caused the injury. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

Mr. McDonald argued that the premises defect on the leased premises caused him injury. He further argued that the city knew of the dangerous condition (the gas leak from the lift station) and that the city had a duty to warn him or eliminate the problem. The city argued that the injury did not occur at the lift station, but rather on other property. The court of appeals held that Mr. McDonald presented sufficient evidence that the city knew of the premises defect that caused the harm and that this situation could waive the city’s immunity. The court of appeals overturned the portion of the trial court’s grant of a plea to the jurisdiction on the issue of premises defect.

Negligence—Personal Property

Mr. McDonald also claimed that the city was liable for negligently using tangible personal property at the lift station, causing his damages. Under the TTCA, a city is liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Id. § 101.021 (emphasis added). However, the court of appeals held that he had alleged a misuse or nonuse of information, not a misuse of personal property. The court of appeals upheld the trial court’s grant of the plea to the jurisdiction as to the negligent use of personal property claim.

Nuisance

A city is liable for nuisance only if a waiver has been specifically given by statute or if the nuisance rises to the level of a taking. See City of Dallas v. Jennings, 142 S.W.3d 310, 316 (Tex. 2004). Article I, section 17, of the Texas Constitution states:

No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person . . . .

A city must act intentionally to cause a taking under this constitutional provision. An act is intentional if the city knows that an act is causing identifiable harm or it knows that harm is substantially certain to occur. See Steele v. City of Houston, 603 S.W.2d 786, 788-92 (Tex. 1980).

Mr. McDonald alleged that the city owned and operated the lift station, for a public purpose, and that the use of the lift station, and the gas it emitted, caused a constitutional taking of his business. He further alleged that the city knew, or reasonably should have known, that its use of the lift station would cause the harmful emissions.

The court of appeals agreed with Mr. McDonald and held that he had shown sufficient evidence to overcome the city’s plea to the jurisdiction on the nuisance issue.

Breach of Implied Warranties

Mr. McDonald also brought claims against the city for breach of the implied warranties of habitability, fitness for a particular purpose, and suitability for intended commercial purposes.

The court of appeals held that the first two warranties do not apply because the implied warranty of fitness for a particular purpose applies only to goods and habitability applies only to residential properties. See TEX. BUS. & COMM. CODE §§ 2.102, 2.315; Gym-N-I Playgrounds, Inc. v. Snider, 158 S.W.3d 78, 86 (Tex. App.—Austin 2005) aff'd, 220 S.W.3d 905 (2007).

The third warranty, the implied warranty of suitability for intended commercial purposes, requires that property not have any latent defects that would prohibit the use of the property for its intended commercial purposes and that the property will stay in suitable condition for the business. See Davidow v. Inwood N. Prof'l Group-Phase I, 747 S.W.2d 373, 377 (Tex. 1988). The suitability warranty only covers latent defects in the nature of a physical or structural defect that the landlord has the duty to repair. Coleman v. Rotana, Inc., 778 S.W.2d 867, 871 (Tex. App.—Dallas 1989, writ denied). A city as landlord could be liable for breach of this warranty if the leased property had a latent structural or physical defect that later made the property unsuitable for the intended commercial purpose of the tenant. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 502 (Tex. App.—Houston [14th Dist.] 2007, pets. denied).

The court of appeals held that Mr. McDonald did not adequately plead a breach of implied warranty of suitability for commercial purposes and that the trial court correctly granted the city's plea to the jurisdiction on Mr. McDonald's breach of implied warranty claims.

Governmental Immunity: East Houston Estate Apts., L.L.C. v. City of Houston, No. 01-08-00966-CV (Tex. App.—Houston [1st Dist.] June 25, 2009). East Houston Estate Apartments, L.L.C. (East Houston), entered into a loan agreement with the City of Houston to rehabilitate East Houston’s apartment complex, contingent upon the city’s receipt of certain federal funding. East Houston was required under the agreement to comply with certain “affordability requirements” and to secure financing from a lender, which it obtained from Chase Bank. After many construction delays, the bank attempted to foreclose on East Houston’s property. East Houston had not repaid any money to the bank or the city, even though it had received approximately one-third of the promised amount from each. East Houston filed for Chapter 11 bankruptcy, which was dismissed. East Houston’s property was eventually foreclosed several years later following its second bankruptcy filing.

East Houston alleged breach of contract by the city and Chase Bank for failure to release to it all the money promised in the loan agreement. It claimed that “the City had waived its immunity from suit because the acts or omissions that formed the basis of the lawsuit involved proprietary acts of the City for which it did not have governmental immunity.” The city filed a plea to the jurisdiction, claiming it was immune because the loan agreement encompassed community development activity authorized by Texas Local Government Code Chapters 373 and/or 374. The trial court granted the city’s plea to the jurisdiction and dismissed all of East Houston’s claims. East Houston appealed.

The court of appeals first determined whether the city was acting in a proprietary or governmental capacity. Cities are immune from suit only for torts committed while performing governmental functions. Courts of appeals have applied this distinction to suits for breach of contract. Because Texas Civil Practice and Remedies Code Section 101.0215(a)(34) classifies “community development activities” as governmental and authorized under Local Government Code Chapters 373 or 374, the court deferred to the legislature and held that the city was acting in a governmental role when it entered into the loan agreement with East Houston.

The court then addressed East Houston’s argument that even if this were true, the city did not comply with the provisions of Chapters 373 or 374, and was thus not immune from suit. Chapter 373 allows a city to adopt a community development program to prevent and eliminate blighted areas, including through rehabilitation of private property. The court determined that the loan agreement in this case was made to give funding to East Houston (a private entity) to rehabilitate an apartment complex for low-income housing. The city council had approved the agreement in an ordinance. Thus, the court held that entering into the loan agreement was a governmental act authorized by Chapter 373, so the city did not waive suit on this basis.

Finally, the court addressed East Houston’s argument that the city waived immunity under Local Government Code Section 271.152. That section provides that a city entering into a contract for providing goods and services to the city waives sovereign immunity to suit for purposes of adjudicating claims for breach of that contract. East Houston claimed its agreement with the city was that it would provide the service of rehabilitating the apartment complex; the city disagreed that this could be construed as a service. The court held that the loan agreement was not the sort of contract covered by section 271.152’s waiver of immunity from suit and that the city did not waive suit on this basis. The court of appeals affirmed the order of the trial court.

Takings: The State of Texas v. Cent. Expressway Sign Assocs., No. 08-0061 (Tex. June 26, 2009). In this takings case, the state condemned an easement on which a billboard company had leased a space for its billboard. When the property was condemned, the state paid for the billboard to be relocated. The trial court struck the state’s expert witness as unreliable for failing to include in his estimate of fair market value the income the billboard generated from advertising sales. The state argued that it was inappropriate to exclude its witness because the billboard income should not be considered in the condemnation award.

The Texas Constitution provides that “[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” TEX. CONST. art. I, sec. 17. However, “adequate compensation” does not include profits generated by a business that is located on condemned land. Herndon v. Hous. Auth., 261 S.W.2d 221, 222-23 (Tex. Civ. App.—Dallas 1953, writ ref'd). There are three methods of determining the market value of condemned property: the comparable sales method, the cost method, and the income method. City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). Business income is only considered in a condemnation proceeding if: (1) the taking, damaging, or destruction of property causes a material and substantial interference with access to the property, see City of Austin v. The Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986); and (2) only a part of the land has been taken, so that lost profits may demonstrate the effect on the market value of the remaining land and improvements, see City of Dallas v. Priolo, 242 S.W.2d 176, 179 (Tex.1951). Without these criteria, business income is not recoverable in a condemnation award.

The Court held that the state’s expert witness’s testimony, which did not include billboard income, reflected an accepted and reliable method of appraising the condemned easement and should not have been excluded. The Court also held that excluding this testimony was reversible error because the testimony was directly related to the central issue in the case, the value of the condemned property.

Standing; Open Meetings Act: Save Our Springs Alliance, Inc. v. City of Dripping Springs, No. 03-04-00683-CV (Tex. App.—Austin July 3, 2009). The court of appeals held that Save Our Springs did not have standing in its environmental pollution case involving the Edwards Aquifer because none of its members owns property in the allegedly affected area or has any “particularized, concrete injury” from the development agreements in question. The court of appeals also held that the city’s open meetings notice was sufficient regarding development agreements because the notice contained the parties to the agreement, the statutory basis of the agreements, and that development agreements are what would be discussed, and that the notice did not need to include all of the consequences and size of the project listed on the notice to be sufficient.

Governmental Immunity--Tort: Christina Goodson v. City of Abilene, No. 11-07-00365-CV (Tex. App.—Eastland June 11, 2009). The court of appeals held that the city’s plea to the jurisdiction was appropriately granted by the trial court because the only arguments the plaintiff had under the Texas Tort Claims Act were based on discretionary decisions that a city is not liable for under the Act.

Permitting: Melissa Kohout v. City of Fort Worth, No. 2-08-102-CV (Tex. App.—Fort Worth June 11, 2009). The court of appeals held that a member of the general public does not have standing to dispute the granting of a high impact well permit since any potential lack of notice did not injure her rights under the applicable ordinance.

Standing: City of Inkster Policeman and Fireman Retirement System v. Richard D. Kinder, et al., No. 01-08-00308-CV (Tex. App.—Houston [1st Dist.] June 4, 2009) (mem. op.). The court of appeals upheld the trial court’s denial of a continuance for the city to conduct discovery because the subject matter of the discovery was immaterial to the motion for summary judgment at issue.

Attorneys Fees: City of Giddings, et al. v. Mattie Everett, No. 03-05-00821-CV (Tex. App.—Austin May 29, 2009) (mem. op.). The court of appeals held that an attorney ad litem’s fees cannot be directly assessed against taxing units bringing suit under the Tax Code, but are instead taken from the proceeds of any tax sale, should one be ordered by the court.

Governmental Immunity-Tort: City of Houston v. Stephon Lamar Davis, No. 01-09-00023-CV (Tex. App.—Houston [1st Dist.] May 28, 2009). A denial of a plea to the jurisdiction was appropriate under the Texas Tort Claims Act, where the plaintiff’s allegations centered on an injury caused by a police dog that was in the custody and use of a police officer when the dog injured the plaintiff.

Governmental Immunity-Tort: City of Austin v. Louis Silverman, No. 03-06-00676-CV (Tex. App.—Austin May 21, 2009) (mem. op.). The court of appeals held that, under the Texas Tort Claims Act, a plaintiff does not have a cause of action where there is evidence only that the function in question was one of discretionary power of the city, and the act or decision was not mandatory by law. The appellate court held that lack of such evidence was not an incurable jurisdictional defect and remanded the case to the trial court so the plaintiff could replead.

Takings: City of Houston v. Harold Dean Noonan, II, No. 01-08-01030-CV (Tex. App.—Houston [1st Dist.] May 21, 2009) (mem. op.). Because the city had no discretion to grant a permit or variance for Noonan to build on his property under a flood ordinance, his claim was ripe for adjudication, even though he did not exhaust all of his administrative remedies.

Zoning: Abder El Hamad v. Comm. Bd. of Adj., No. 2-08-294-CV (Tex. App.—Fort Worth May 14, 2009) (memo. op.). The court of appeals held that the board of adjustment did not abuse its discretion in denying a special exception because it looked at both the evidence of the business and evidence of neighboring property owners.

Demolition Authority: Magdalena S. Martinez v. City of Fort Worth Historic and Cultural Landmarks Comm’n, No. 2-08-433-CV (Tex. App.—Fort Worth May 14, 2009) (mem. op.). The court of appeals held that there is no right of appeal to a court from a decision of a historic commission under Chapter 211 of the Local Government Code because the historic commission allows a demolition, but has no authority to order the demolition of a dangerous building.

Governmental Immunity-Tort: City of Weston v. Chad and Jennifer Gaudette, No. 05-08-01478-CV (Tex. App.—Dallas May 13, 2009). The court of appeals held that there was sufficient evidence of a special defect on city property under the Texas Tort Claims Act where a hole extended the width of the street and to a depth of five to six inches.

Workers Compensation: City of Laredo v. Juan Garza, Jr., No. 04-08-00504-CV (Tex. App.—San Antonio May 13, 2009). The court of appeals held that the plaintiff presented legally insufficient evidence of complex pain syndrome where there were conflicting opinions on whether the accident could have caused his injuries and the plaintiff provided no expert testimony that his accident caused the specific injuries at issue.

Negligence: Larry L. Richard, et al. v. City of Austin, No. 03-05-00700-CV (Tex. App.—Austin May 13, 2009) (mem. op.). The court of appeals held that the city was not liable for a construction worker's death under Chapter 95 of the Texas Civil Practices and Remedies Code where no evidence was presented that the city had actual knowledge of the supposed danger or condition that caused the worker's death.

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-0717 (Open Meetings Act): could not conclude, as a matter of law, that a charter provision of the City of Rockwall permitting a majority of members of the city council to call a special meeting violates the Open Meetings Act on its face.

Opinion No. GA-0725 (Tax Increment Financing): concludes that Tax Code Section 312.204(d) excludes real property owned by a member of a city's governing body from tax increment financing. It is unlikely that a city councilmember who in a deed conveying real property reserves to himself the sale proceeds of the property, if and when the property is sold, is the owner of the property under Section 312.204(d) by virtue of the reservation. Thus, such a reservation does not by itself appear to operate to exclude property from tax increment financing under Section 312.204(d).

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.
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