Exclusive Franchise Agreements for Solid Waste Collection, Kerry Russell and Arturo D. Rodriguez, Jr., Russell & Rodriguez, Scott Houston, Texas Municipal League: In 2007, during the closing hours of the Eightieth Legislative Session, new legislation was passed that some have argued could once again impact municipal solid waste franchises throughout the state. House Bill 1251 amended Texas Health and Safety Code Section 364.034 by adding a new Subsection (h), which reads as follows: “This section does not apply to a private entity that contracts to provide temporary solid waste disposal services to a construction project.” The fear of some cities (and the interpretations of some solid waste haulers) is that the new provision was intended to exclude temporary construction projects from an exclusive municipal franchise agreement. If read in isolation, this interpretation could have some credence. However, Read more.

2007 Fall Conference in Dallas: The TCAA Fall conference will be held in conjunction with the TML Annual Conference on November 8, 2007, at the Dallas Convention Center.

Topics will include: (1) recent state and federal cases; (2) annexation – prior continuous uses; (3) employment law update; (4) water law – recent developments; (5) municipal regulation of alcohol; (6) legislative implementation: red light photo enforcement and conflicts disclosure; (7) ethics; and (6) a special session on Voting Rights Act compliance that will be presented by John Tanner, the Chief of the U.S. Department of Justice’s Voting Rights Section.

A link to registration and hotel information is now available on the front page of www.texascityattorneys.org. Most attorneys will want to choose the “one-day registration” option. Attorneys can earn up to 4.75 MCLE hours, including .5 ethics hour.

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

Member News: Have you moved or changed jobs? Received an award? Do you have other news of interest to TCAA members? If so, we want to hear from you and share the news! Please e-mail the information in 50 words or less to legalgovt@tml.org, and the information may be included in this newsletter. (Note: this is a new program, and postings are subject to the editor’s discretion.)

2007 South Padre Conference: As usual, the TCAA Summer Conference in South Padre Island was a great success! Thanks to all those who attended, all of the presenters for volunteering their time and talent, and thanks once again to our sponsors:

• 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
• Rimkus Consulting Group, Inc.

Next year’s conference will be held on June 11-13, 2008, at the Radisson. Look for an agenda and hotel reservation information in early 2008.

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

Contract City Attorneys IRS Status: TML and TCAA filed a letter in an appeal by the city attorney of Henderson, Texas, to the IRS. The IRS had ruled that the city attorney, as a statutorily created "city office," was not an independent contractor for purposes of income tax, but rather a city employee. TML and TCAA explained that city attorneys often have many clients, including a city, and that in such cases they are truly independent contractors, just as they are when hired by any client. The letter urged the IRS to continue to make determinations of independent contractor status based on the tests in place, and to abandon from its analysis of such cases as a determining factor whether there is a statutorily created office of “city attorney" in Texas state law.

TCEQ Water Quality Standards: TML recently submitted a letter to Mark Vickery, the deputy executive director of the Texas Commission on Environmental Quality (TCEQ), regarding the agency’s possible limitation of total maximum daily loads (TMDLs) for bacteria. TCEQ has never issued bacteria TMDLs before, and the current water quality standards for contact recreation, when used to create these TMDLs, may create a standard that is difficult, if not impossible, to meet. TML asked the agency to delay the TMDL process until the contact recreation water quality standards can be reevaluated in light of the specific water uses and issues present in the state.

Whistleblower Act: City of Waco v. Robert Lopez, No. 06-0089 in the Texas Supreme Court. TML and TCAA argued that the reporting of a violation of an internal city policy to a supervisor by an employee should not trigger the protections of the Texas Whistleblower Act.

Open Meetings Act: Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, Gregg Abbott, Texas Attorney General, and the State of Texas, C.A. No. P-05-CV-75 in the United States District Court for the Western District of Texas. TCAA argued that, while city attorneys are committed to openness in government, the criminal provisions of the Texas Open Meetings Act are written such that it is almost impossible to properly advise city officials on discussion outside of formal meetings. As such, city attorneys seek more guidance as to how to advise city officials in regards to that provision. The suit was filed on September 26, 2005, and on November 7, 2006, the court held that the Texas Open Meetings Act provisions in question are constitutional because the speech at issue was uttered in the speaker’s capacity as a councilmember, and that the Act’s provisions are neither overbroad nor vague. The decision was appealed to the Fifth Circuit in April of 2007, and a decision is pending.

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

Sovereign Immunity: Dallas Fire Fighters Ass’n v. City of Dallas, No. 04-0821 (Tex. June 1, 2007) (per curiam). The Dallas Fire Fighters Association and individual fire fighters sued the City of Dallas, objecting to the city’s use of an “oral assessment test” performed by an outside contractor in making promotion decisions. The trial court granted the city’s plea to the jurisdiction on governmental immunity grounds and the court of appeals affirmed. The fire fighters argued that language in the city’s charter waives its sovereign immunity. The Supreme Court of Texas reversed the court of appeals’ opinion and remanded the case to the trial court, holding that the city’s charter did not waive sovereign immunity under Tooke v. City of Mexia, but also holding that the fire fighters should have a chance to argue that the city’s immunity was waived for a different reason.

Sovereign Immunity: City of Arlington v. Matthews, No. 06-0251 (Tex. June 1, 2007) (per curiam). Charles Matthews sued the city for breach of an employment agreement and for intentional torts. The trial court denied the city’s plea to the jurisdiction on governmental immunity. The court of appeals affirmed on the breach of contract issue stating that Section 51.075 of the Local Government Code waived the city’s sovereign immunity as to contract claims. The Supreme Court of Texas held that the city’s immunity was not waived by Section 51.075 as demonstrated by its recent case in Tooke v. City of Mexia. The Court remanded to the trial court for review of whether Local Government Code Sections 271.151-271.160 would waive immunity.

Sovereign Immunity: City of Pasadena v. Kinsel Industries, Inc., No. 06-0353 (Tex. June 1, 2007) (per curiam). Kinsel and the city were involved in a contract dispute related to construction on a wastewater plant. The trial court denied the city’s plea to the jurisdiction on the governmental immunity issue. The court of appeals affirmed, stating that Section 51.075 of the Local Government Code and a charter provision waived the city’s sovereign immunity. The Supreme Court of Texas held that the city’s immunity was not waived by Section 51.075 or the charter provision as demonstrated by its recent case in Tooke v. City of Mexia. The Court remanded to the trial court for review of whether Local Government Code Sections 271.151-271.160 would waive immunity.

Zoning: Juan Manuel Tellez v. City of Socorro, No. 05-0629 (Tex. June 1, 2007) (per curiam). Tellez operated an auto salvage yard in Socorro since 1982, and in 1998 he bought an adjacent lot to expand the yard. After Tellez purchased the property, the city enacted zoning regulations, zoned the property residential, and the zoning board denied Tellez’s application for a nonconforming use. Tellez appealed the decision to the trial court, and the trial court affirmed the board’s decision. On appeal, the court of appeals dismissed for lack of subject matter jurisdiction due to procedural problems related to the zoning appeal procedure laid out in the Local Government Code. The Supreme Court of Texas reversed and remanded, holding that failing to follow these statutory procedures did not preclude the court from having subject matter jurisdiction, but was merely a procedural defect.

Sovereign Immunity: City of Elsa v. M.A.L., No. 06-0516 (Tex. June 1, 2007). City police officers sued the city for monetary damages and constitutional violations when the officers’ termination for positive drug test results was allegedly released by the city to the media. The officers argued that the city could be sued and held liable for monetary damages because of a “sue and be sued” provision in the city’s charter. The city argued that it could not be held liable for constitutional violations because the officers sued the city and not individual officers. The courts below held that the city waived its sovereign immunity under its charter provision and that the constitutional causes of action had to be remanded to the trial court because the officers sued the wrong party. The Supreme Court of Texas held that the constitutional causes of action were properly remanded because suing the city was sufficient, and that the city did not waive its sovereign immunity under the recent holding in Tooke v. City of Mexia.

Sovereign Immunity: City of Seagoville, Kimberly Bustos v. Lytle, No. 05-06-01016-CV (Tex. App.—Dallas June 13, 2007). Captain Lytle sued the city and Ms. Bustos for monetary damages and injunctive relief after he was terminated for violating the city’s sexual harassment policy in his interaction with Ms. Bustos. The city and Ms. Bustos both argued that they had immunity from suit. The trial court held that the city and Ms. Bustos were not immune. On appeals, the court of appeals held that the city was immune from monetary damages, but could be sued for injunctive relief. The court also held that Ms. Bustos retained official immunity. The court remanded the case to the trial court to decide the injunctive relief issues.

Sexually Oriented Business: City of Arlington v. Centerfolds, Inc., No. 2-06-080-CV (Tex. App.—Fort Worth June 14, 2007). Centerfolds operated a sexually oriented business in Arlington since 1988. In 1992, the city adopted a sexually oriented business ordinance that would have prohibited Centerfolds’ business in Arlington, but it remained as a nonconforming use. In 2003, the business was renovated and changed from a female oriented business to a male oriented business. When Centerfolds’ tried to renew its license for a nonconforming use the city denied the license because it violated the city’s ordinance. Centerfolds appealed this denial to the trial court, which reversed the city’s decision and sent the issue back to the city to review the application. The court of appeals held that Centerfolds had standing to challenge the city’s ruling, and that Centerfolds’ procedural due process rights were violated by the city at the hearing denying the license. The court of appeals affirmed the trial court’s judgment and remanded the issue to the city for a review de novo.

Water District: Bexar Metropolitan Water District v. City of Bulverde, No. 03-06-00447-CV (Tex. App.—Austin June 27, 2007). The issue in this case was whether the Bexar Metropolitan Water District could provide services outside its boundaries and annex area under changes to its enabling act. The district court held that the district’s enabling act did not allow it to annex additional authority or provide service outside its service area. The court of appeals affirmed the district court’s holding.

Property Taxes: Harris County Appraisal District, et al. v. Blue Flash Express, L.L.C., No. 01-06-00783-CV (Tex. App.—Houston [1st Dist.] May 10, 2007). Blue Flash Express, a trucking company, failed to pay taxes on vehicles that it leased, and filed a correction motion under Section 25.25 of the Texas Property Tax Code claiming that the property had been over-appraised. Blue Flash then filed a third-party petition against the Harris County Appraisal District and the Harris County Review Board, alleging that it had been denied due process because the district and board had failed to provide it proper notice of its due taxes. The district and board filed a motion for partial summary judgment, which the trial court denied, and Blue Flash then filed a motion for summary judgment, which the trial court granted. Reversing the trial court’s judgment, the court of appeals rendered judgment that Blue Flash’s third-party claim against the district and board be dismissed without prejudice for lack of subject-matter jurisdiction. The court of appeals remanded the cause.

Water District: Bexar Metropolitan Water District v. City of San Antonio, No. 03-06-00557-CV (Tex. App.—Austin June 29, 2007). This case was filed in response to Senate Bill 1494 of the Seventy-Eighth Legislature, which purportedly established geographical limits for BexarMet. The San Antonio Water System (SAWS) filed suit against BexarMet, seeking a declaration that BexarMet is prohibited from expanding its political boundaries and service area past the limits described by Senate Bill 1494. The trial court held in favor of SAWS, holding that Senate Bill 1494 validly limited BexarMet’s geographical limits. The court of appeals affirmed, holding that SAWs had standing to file suit on this issue, that Senate Bill 1494 was not unconstitutional under Article XVI, Section 59, of the Texas Constitution, and that Senate Bill 1494 does limit BexarMet’s service territory and boundaries.

Tasers: City of Lubbock and Taser Int’l, Inc. v. Grace Nunez and Juan Nunez, No. 07-07-0007-CV (Tex. App.—Amarillo, May 30, 2007). A City of Lubbock police officer responded to a 911 call at the Nunez residence. The officer instructed John Nunez to exit the residence, and when he failed to comply with the instruction, the officer fired his taser, and delivered three additional electrical shocks. Mr. Nunez subsequently died, and his family brought suit against the city for wrongful death and for survival damages. The family alleged that the city’s governmental immunity was waived because the officer’s use of tangible personal property (the taser) caused personal injury and death. The city filed a plea to the jurisdiction contending that the officer’s actions of firing the taser at Nunez and of administering additional shocks were intentional and therefore met the “intentional tort” exception to The Texas Tort Claims Act’s waiver of governmental immunity. After the trial court denied the city’s plea to the jurisdiction, the city filed an interlocutory appeal. The court of appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction, and held that the family had pled a negligence cause of action and that the city had failed to establish that the officer intended to injure or kill Mr. Nunez, and therefore the intentional tort exception did not apply.

Contractual Immunity: City of Houston v. Swinerton Builders, Inc., No. 01-06-00870-CV (Tex. App.—Houston [1st Dist.] June 21, 2007). The City of Houston entered into a contract with Swinerton for the construction of a convention center expansion phase, for which Swinerton was to act as the project’s general contractor. When Swinerton’s attempts to collect additional expenses failed, Swinerton filed a suit, asserting separate causes of action: (1) breach of contract; (2) quantum meruit; and (3) violation of the Prompt Payment Act. The city filed a partial plea to the jurisdiction on the quantum meruit and Prompt Payment Act claims, asserting in part that Swinerton had not pleaded any legislative waiver of immunity. Swinerton filed an amended petition. The trial court denied the city’s plea to the jurisdiction on Swinerton’s quantum meruit claim and granted the city’s plea on Swinerton’s Prompt Payment Act. Swinerton filed an amended petition with the trial court and a motion in the court of appeals to dismiss both its own appeal and the city’s appeal. The court of appeals concluded that Section 51.014 of the Civil Practice and Remedies Code prevented Swinerton from amending its petition, and that the legislature has not waived immunity from claims in quantum meruit. Therefore, the court of appeals reversed the trial court’s denial in part of the city’s plea to the jurisdiction, and dismissed Swinerton’s claim in quantum meruit.

Police Misconduct: Evelyn Lewis v. Larry Pugh, Mark Johnson, City of Jacksonville Police Department, and City of Jacksonville, No. 6:06-cv-357 (US Dist. Ct., E.D. Texas, Tyler Division, May 11, 2007). This case originates from allegations that Evelyn Lewis was sexually assaulted by Larry Pugh, a police officer for the City of Jacksonville. In her suit, Lewis asserted claims against the city and former Police Chief Johnson under 42 U.S.C. § 1983 for their failure to supervise Pugh, their deficient hiring and retention of Pugh, and their toleration of a custom of police misconduct. The court concluded that there was no genuine issue of material fact as to Lewis’ claim that the defendants’ were deliberately indifferent in their training, supervision, hiring, and retention of Pugh, and that Lewis failed to produce evidence that any deficient administrative procedure for reporting complaints of police misconduct was the moving force behind Lewis’ injuries. Therefore, summary judgment was granted as to the plaintiff’s claims, and the plaintiff’s claims against the city and Johnson were dismissed.

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-0548 (Tax): concludes that Tax Code Section 33.011 requires a taxing unit to waive penalties and authorizes it to waive interest on a delinquent tax if the taxpayer's failure to pay the tax before delinquency resulted from an act or omission of an officer, employee, or agent of the taxing unit or the appraisal district in which the taxing unit participates and if the tax was paid not later than the 21st day after the date the taxpayer knew or should have known of the delinquency.

Opinion No. GA-0549 (Tax): concludes that Section 403.302(d)(4) of the Government Code requires the Texas Comptroller to deduct the total dollar amount of only the percentage of the captured appraised value of school district property located in a tax increment reinvestment zone that corresponds to the percentage of the tax increment actually paid into the tax increment fund by the school district.

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.

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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