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.

Registration information is now available at www.texascityattorneys.org. 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
• Banowsky & Levine, P.C.

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

Municipal Attorney Job Openings:

City of Denton, Senior Assistant City Attorney:  The city is seeking a highly-motivated municipal attorney for a city with a population of approximately 100,000.  This position will act as consultant to various departments, review personnel polices, handle employee terminations, disciplinary actions and EEOC complaints, prepare contracts, ordinances and other documents, act as backup to the municipal prosecutor, and perform other assigned duties.  Requires graduation from an accredited law school and a minimum of three years experience in municipal law, or five years experience in practicing law with some municipal law or government law experience.  License to practice law in the State of Texas, preferably also in the Fifth Circuit and Eastern District of Texas, required, and a valid Class C Driver’s License is also required.  Salary $5,560 to $6,178 per month with competitive benefits.  Open until filled.  The City of Denton is an Equal Opportunity Employer.  Please submit resume and writing sample to:

Human Resources, City of Denton
601 E. Hickory, Suite A
Denton, Texas  76201

International Municipal Lawyers Association, Associate Counsel:  The International Municipal Lawyers Association (IMLA), currently located in Washington, D.C., has an opening for a full-time attorney with the following primary responsibilities: legislative advocacy (tracking, analyzing and reporting on legislation affecting local governments, and formulating submissions on legislative changes); legal advocacy and amicus work; and assisting with substantive CLE programming for IMLA’s two annual events (a conference and a seminar) and audio-conferences. The position also includes some legal writing and research responsibilities.  The successful applicant must have a J.D or equivalent degree from an ABA-accredited law school and membership in good standing of a state bar association; a good, solid work ethic; the ability to work independently and achieve results with minimal supervision; excellent writing and organizational skills, and be detail- and deadline-oriented.  Previous experience with local government law is a definite plus. The pay range for the position is $57,000 to $85,000 per annum. Employee benefits include comprehensive medical and dental insurance plans, flexible work arrangements, a 403(b) plan, and more.  The closing date for applications is Thursday, August 31, 2006. Interested applicants must provide a resume and a recent writing sample to: IMLA, 1110 Vermont Avenue, NW, Suite 200, Washington, D.C. 20005, Attention: Henry Underhill, Executive Director and General Counsel. The fax number is (202) 785-0152; and e-mail is hunderhill@imla.org.

City of New Braunfels, City Attorney:  This is a full-time exempt position serving as legal counsel for the city council, city manager, and the various departments of the city providing advice, direction, and representation on all legal matters for the City of New Braunfels.  The city attorney reports directly to city council and supervises the assistant city attorney who is responsible for all prosecutions in municipal court.  This position also functions as a department head managing operations and budget for the legal department.     

A four-year bachelors degree and juris doctor degree are required.  Must be in good standing with the State Bar of Texas, and have a valid Texas driver’s license with an acceptable driving record.  Residency within the city of limits of the City of New Braunfels will be required.  Must be licensed to practice law in federal and state courts.  Minimum of five years of municipal legal experience in the State of Texas required.  Experience in land use, development, and finance law preferred.  Must have excellent organizational and communication skills to interact and maintain effective working relationships with council, staff, vendors, contractors, and the general public. 

City council determines salary based on qualifications.  Apply at the city secretary’s office in the municipal building, 424 S. Castell Avenue, New Braunfels, Texas 78130, or on the city’s Web site:  www.nbtexas.org.  The position is open until filled.

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

Takings:  City of Laredo v. Gerardo and Carmen J. Duarte, No. 04-06-00226-CV (County Court at Law No. 2, Webb County – July 12, 2006).  After the City of Laredo refused to allow them to build over a power line easement on their property, the Duartes sued the city, alleging: (1) a taking of their property; and (2) a negligence claim asserting that the city’s actions were arbitrary, unreasonable, and capricious.  The city filed a plea to the jurisdiction asserting that the damages sought by the Duartes exceeded the jurisdictional limits of the county court at law and that the Duartes failed to show a waiver of immunity.  The trial court denied the plea, and the appeals court reversed the trial court’s order.

Gas Utilities Regulatory Act:  City of Port Neches, City of Nederland, City of Groves, and Texas Gas Service Company v. Railroad Commission of Texas, No. 03-05-00777-CV (Tex. App – Austin, Aug 4, 2006).  The district court affirmed the Texas Railroad Commission’s award of an increase in Texas Gas Service Company’s (TGS) gas rates for three of the four cities comprising the South Jefferson County Service Area.  The cities argued that: (1) the awarded rate increase was in excess of the Commission’s jurisdictional limits because the Commission improperly considered the expenses of the Southern Union acquisition as a “known and measurable change;” and (2) the rate calculation should have included as a “known and measurable change” the $295,160 worth of increased revenues that TGS would collect from Port Arthur pursuant to the settlement agreement. TGS disagreed with the cities on both of these issues and argued that: (1) the rate calculation should not have included as “revenues” $44,239 worth of “forfeited discount rates” that TGS may collect from Port Arthur; and (2) the Commission should have awarded TGS $80,480 in rate case expenses for the cost of a consultant who prepared data and testified for TGS.  The appeals court affirmed the district court’s judgment in all parts, except for its affirmation of the Commission’s treatment of the forfeited discount rates.  That portion of the judgment was reversed and remanded to the district court, with instructions to remand the cause to the Commission for further proceedings consistent with the opinion of the appeals court. 

Whistleblower: City of Houston v. Sam Levingston, D.V.M., No. 01-03-00678-CV (Tex. App. – Houston [1st Dist], July, 27 2006). Levingston, a veterinarian in the City of Houston’s Bureau of Animal Regulation and Care (BARC), was terminated after eight years of service. Levingston claimed that he was terminated because he reported instances of animal abuse to the head of BARC, while the city claimed that Levingston was terminated for inadequate performance. He appealed to the city’s civil service commission, which upheld the termination. In the trial court, the jury found that the termination was in violation of the Whistleblower Act due to Levingston’s report to BARC.  The trial court awarded Dr. Levingston $116,500 in past wages, $235,000 as the value of reinstatement to Levingston’s former position, fringe benefits and seniority rights, and $250,000 in capped compensatory damages, plus attorneys’ fees, pre-and post-judgment interest, and court costs.  In a rehearing of the case, the appeals court withdrew its previous opinion and modified the trial court’s judgment to provide for the award of prejudgment interest on the amount of $116,500 and affirmed the judgment of the trial court in all other respects. 

Procedure:  Texas Department of Criminal Justice v. Brian Edward Simmons, No. 09-06-039-CV (Tex. App. – Beaumont July 27, 2006).  This is an interlocutory appeal by the Texas Department of Criminal Justice (TDCJ) from an order by the trial court denying TDCJ’s plea to the jurisdiction and denying TDCJ’s motion for summary judgment.  Brian Edward Simons sued Texas Department of Criminal Justice (TDCJ) for injuries he allegedly sustained during his incarceration.  TDCJ contends Simons’ claim is barred because of failure to provide notice as required by the Texas Tort Claims Act (TTCA).  The court originally held that TDCJ had actual notice of Simons’ claim and affirmed the trial court’s order; however, the decision was reversed by the Texas Supreme Court.  On remand, the majority held as a matter of law that TDCJ did not have actual notice that its fault produced or contributed to the accident.       

Disability Benefits: William Pratt v. Employee’s Retirement Fund, No. 10-05-00013 CV (Tex. App. – Waco, July 19, 2006).  Note:  This is a memorandum opinion.  Mr. Pratt was injured in the line of duty as a firefighter for the City of Fort Worth.  He received disability benefits, which were reduced because he earned more than his base hourly rate of pay for 2002.  Mr. Pratt filed suit under the Declaratory Judgments Act alleging that he was entitled to full disability benefits under article 6243, et seq., of the Texas Revised Civil Statutes and under a city ordinance.  The Employee’s Retirement Fund filed motion for summary judgment and disproved an essential element of Mr. Pratt’s cause of action.  Thus, summary judgment as a matter of law was proper. 

Water Rights Adjudication: City of College Station v. Wellborn Special Utility District, No. 10-04-00306-CV (Tex App.-Waco July 26, 2006).  Note:  This is a memorandum opinion.  The City of College Station annexed land within the Wellborn Special Utility District (WSUD) and attempted to provide retail water services in said land pursuant to a previous agreement.  WSUD filed a cease-and-desist order with the Texas Commission on Environmental Quality, and the city filed this lawsuit against WSUD.  This court affirmed the trial court’s judgment granting WSUD’s plea to the jurisdiction on the grounds that the Commission has exclusive jurisdiction over the alleged claims.  

Takings: City of Anson v. Dorothy Davis Jones Harper et. al., No. 11-05-00398-CV (Tex. App. – Eastland, July 13, 2006). Harper filed suit against the City of Anson, Texas, because of the city=s plans to build a municipal solid waste landfill on land where she owns the minerals.  Harper sought relief against the city on the grounds of inverse condemnation based upon actual interference with property rights and under the Private Real Property Rights Preservation Act.  The city filed a plea to the jurisdiction.  The trial court denied that motion, and the city filed an interlocutory appeal.  The appeals court affirmed in part and reversed and rendered in part, finding the trial court had jurisdiction over previous actions but not this suit because the claim was based upon future actions that have not yet caused actual interference. 

Restricted Appeal: Tommy Bennett and Theresa Davis v. Wood County, No. 12-05-00337-CV (Tex. App. – Tyler July 12, 2006).  Wood County instituted suit to collect delinquent taxes, penalties, and interest from owners Bennett and Davis, of a described 11.242 acre tract.  Owners were personally served with citation, but did not answer.  More than a year later, Wood County amended its petition to correct the property description of the 11.242 acres (tract 1), added a mobile home description as tract 2, and alleged delinquent taxes due on the mobile home in the amount of $1,634.10.  Owners were not served with the amended petition, failed to receive notice, and did not appear.  A default judgment was rendered against them for the taxes, penalties, and interest owing on both tracts.  The appeals court reversed and remanded the case for a new trial based on lack of proper service. 

Sovereign Immunity:  Van Zandt County v. Earnest Whitaker, No. 12-05-00409-CV (Tex. App. – Tyler July 31, 2006).  Note:  This is a memorandum opinion.  A sheriff’s deputy filed suit against Whitaker for injuries he allegedly sustained during Whitaker’s arrest.  Whitaker counter-sued Van Zandt County for injuries he allegedly suffered during the same arrest.  The county filed a plea to the jurisdiction claiming sovereign immunity.  The pleas was denied by the trial court.  The county appealed the denial, and the court found that Whitaker’s claims were based on intentional acts against which governmental units retain their immunity.  Therefore, the trial court erred in denying the county’s plea to the jurisdiction, and the appeals court reversed and remanded the judgment and dismissed Whitaker’s suit for want of jurisdiction.

Forcible Detainer: Belinda Torres v. Corpus Christi Housing Authority, No. 13-04-00591-CV (Tex App. – Corpus Christi, August 3, 2006).  Torres had been a tenant of the Corpus Christi Housing Authority for over five years.  Under her lease, she had a duty to “act in a manner which will not disturb” her neighbors enjoyment of the housing.  The lease also included a “one strike and you’re out” policy.  On February 10, 2004, Torres received notice to vacate the premises based on a police report accusing her of terroristic threats that had been occurring on a daily basis “for awhile now.”  Torres refused to leave, and the housing authority filed a suit for forcible detainer in the justice court, which ordered her eviction.  She appealed to the county court at law, and a trial de novo was held on September 27, 2004.  After the county court at law ordered her eviction from the premises in question, Torres appealed again.  The appeals court affirmed the eviction, noting that Torres failed to make a timely and specific objection to preserve error, and thus the any complaint was waived.   

Code Violations:  Susan C. Lee v. City of Houston, No. 14-05-00366-CV (Tex. App. – Houston, August 8, 2006).  Lee owns a residential property that was found to be vacant, unsecured, contained garbage, and to have structural problems.  A city inspector found several violations of city code and sent notice for an administrative hearing.  The hearing official issued an order finding that the structure on the property violated several code provisions and was a dangerous building.  The trial court, and later the appeals court, affirmed the administrative ruling against Lee. 

City Employee Benefits: City of El Paso et. al. v. Lilli M. Heinrich, No. 08-05-00203-CV (Tex. App. – El Paso, July 20, 2006). Charles D. Heinrich an El Paso Police Department officer passed away as a result of a job-related injury. He was survived by his wife, Lilli M. Heinrich, and a then-minor son. The El Paso Firemen and Policemen’s Pension Fund commenced payment of Mr. Heinrich’s pension benefits for Mrs. Heinrich and her son in October 1985. The total payment equaled to 100 percent of Mr. Heinrich’s pension. The Pension Fund requested that she confirm that her son met the definition of a "qualified child" under Section 4 of the System Bylaws. Later, the Board voted to discontinue payment to her son. Mrs. Heinrich contends that the benefits did not account for her son’s share, and filed a claim asserting that the Board had breached its fiduciary duty, acted illegally, and violated several Texas Civil Statutes. Furthermore, Mrs. Heinrich claimed that she was entitled to reimbursement of the total pension benefits she would have received along with cost of living allowances from the date of the illegal act to the date of trial. The city argued that, as a governmental entity, it is immune from suit under the sovereign immunity doctrine, in particular because Mrs. Heinrich claimed monetary damages. The city further asserted that the individuals named as defendants in this case also are immune to Mrs. Heinrich’s claims pursuant to the doctrine of official immunity. The court found that Mrs. Heinrich did not seek monetary damages, and therefore her suit is not barred by governmental immunity. Furthermore, the court found no official immunity for state officials who allegedly act without legal or statutory authority.

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 - 446: With regards to the new Chapter 176 conflicts disclosure statute, concludes that:

• Chapter 176 does not include a de minimis exception. In other words, the law applies to contracts involving small and/or routine purchases.
• A city officer has a “business relationship” with a vendor when the officer has a connection to a vendor based on the commercial activity of one of them. For example, if a city official has an interest-yielding checking account with a bank that yields two dollars interest per year, the official has a business relationship with the bank. If that bank holds city funds, the requirements of Chapter 176 are triggered.
• Conflict of interest statements or questionnaires that are filed with the city must be maintained in accordance with the city’s records retention schedule.
• Neither Chapter 176 nor the state’s model records retention schedule provide for a specific time period during which a city must retain the statements and questionnaires and/or leave statements and questionnaires on the city’s Web site. Thus, presumably, these must be retained and posted for eternity unless and until the law is changed.
• A city must post a vendor’s questionnaire on its Web site, even if the questionnaire indicates that no conflict is present according to the bill.
• A city has no affirmative duty to require a vendor to comply with Chapter 176. In addition, a city has no duty to cease doing business with a noncompliant vendor.
• A contract that existed prior to January 1, 2006, does not trigger the requirement for a vendor to file a questionnaire, unless the contract is amended after that date.
• Family members may be considered vendors under the terms of the bill. For example, if a councilmember’s spouse does work for the city, and the spouse gives the councilmember a $400 suit as a gift, that gift triggers the disclosure requirements of the law.
• “Professional services” such as the services of attorneys, engineers, or architects, are covered by the bill.

While the opinion recognizes that Local Government Code Chapter 171 (the “conflict of interest” chapter) already mandates reporting and abstention for true conflicts of interest, the attorney general’s office has no authority to re-write the plain language of the Chapter 176.

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.

Open Meetings Act Challenge Update:  “Texas Open Meetings Act:  Unconstitutional?”
*Note:  This article appeared in the most recent issue of the Texas Municipal League’s Legislative Update Newsletter, available at www.tml.org.

A city councilmember in a West Texas town sent an e-mail to four other councilmembers asking whether they feel that a particular item should be placed on a future agenda. The following day, one of the four councilmembers responded to the first e-mail, stating that she agreed that the item is relevant and should be discussed. Did that exchange violate the Texas Open Meetings Act (Act)?

According to the Brewster County district attorney, it did. As a result, two of the councilmembers involved in the exchange were criminally indicted by a grand jury. The indictments were ultimately dismissed “without prejudice,” meaning the councilmembers could be charged again, but the prosecution led to a civil lawsuit challenging the constitutionality of the Act.

Fed up with the tortured interpretations and absurd applications of the Act, the two councilmembers, represented by well-known defense attorney Dick DeGuerin, the Alpine city attorney, and a Texas Tech law professor, recently sued the district attorney and the State of Texas in a federal lawsuit styled Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, and the State of Texas.

According to appellate court decisions and attorney general opinions, an exchange between councilmembers for the purpose of deciding whether an item should be placed on a future agenda is arguably not a violation of the Act. However, councilmembers should not discuss the merits of an issue or how they intend to vote when doing so. Clear as mud? Of course not, and that is what a TML attorney [and the City Attorney of El Paso] testified to at the trial.

When a TML attorney or city attorney advises on whether councilmembers can discuss business outside of a posted meeting, either as a quorum or in numbers less than a quorum, the only way to ensure that no one will be criminally prosecuted is to say “don’t do it.” In other words, the most conservative legal advice is to advise councilmembers not to talk about items of public business with each other outside of a properly-posted meeting. Of course, it is essentially impossible to run a city that way.

Beyond that advice, there is a continuum of behavior to consider. Some discussions clearly violate the Act, whereas others do not. It is the fact that there is a gray area in the middle of that continuum, rather than a “bright line,” that has a chilling effect on a councilmember’s freedom of speech. Because councilmembers do not know specifically what they can and can’t talk about, they are afraid to talk about anything. And that scenario is exactly what the First Amendment to the United States Constitution was meant to protect.

In addition, because there is a gray area in the law, local prosecutors have too much discretion when deciding whether to prosecute. Prosecutors always have absolute discretion regarding whether or not to prosecute a crime; that’s not the issue here. The issue is this: under the current terms of the Act, prosecutors are essentially given discretion to make up the elements of the crime. That is the very definition of an overbroad (and therefore unconstitutional) law.

A bench trial in the federal case was held in Pecos, Texas, on July 26, 2006. The parties have until September to submit additional evidence, and a decision will probably come down later this year.

Neither the Texas Municipal League nor its member city officials are opposed to open government or favor “backdoor deals in smoke-filled rooms.” To say so would be patently absurd. What city officials favor is serving their communities without the constant threat of fines and jail time for doing so. They need a “bright line” to know what behavior is permissible, and what is not. It is hoped that this case will give them what they need.

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