TCAA to Fill Two Board Positions on November 8, 2007: 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 from the front page of TCAA’s Web site at www.texascityattorneys.org, and must be received by 5:00 p.m. on October 12, 2007. Pursuant to the TCAA Constitution, the TCAA President has appointed a three-member nominating committee to make a recommendation to the membership on the applications. The members of that committee are: (1) Susan Rocha; (2) Art Pertile; and (3) Nancy Williams.

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.

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

Phase II Storm Water, Lauren Ford Crawford, Texas Municipal League: The TCEQ attempted to begin the general permit process for small municipal separate storm sewer systems (MS4s) not long after the control of the permitting process was brought under state control, but a lawsuit slowed down the process. In Environmental Defense Center, Inc. v. U.S. E.P.A., three cases were consolidated for a combined twenty-two constitutional, statutory, and procedural challenges to the EPA’s Phase II storm water permitting scheme. 344 F.3d 832 (9th Cir. 2003). Only three of the challenges were successful, and after the petition for a writ of certiorari was denied by the United States Supreme Court in January 2004, the Phase II rulemaking went forward at the federal and state levels. The Phase II general permit recently adopted by the TCEQ is the final version of this general permit as it will be enforced under the state’s Texas Pollutant Discharge Elimination System TPDES program. Read more.

Annexation Development Agreements, Scott Houston, Texas Municipal League: House Bill 1472, which became effective on May 25, 2007, enacted Section 43.035 of the Texas Local Government Code. The bill provides that a city may not annex an area that is appraised for ad valorem tax purposes as agricultural, wildlife management, or timber management unless the city offers a development agreement to the landowner that would: (1) guarantee the continuation of the extraterritorial status of the area; and (2) authorize the enforcement of all regulations and planning authority of the city that do not interfere with the use of the area for agriculture, wildlife management, or timber. Under the bill, the landowner may either: (1) accept the agreement; or (2) decline to make the agreement and be subject to annexation. Read more.

No Amicus Briefs or Comments Were filed This Month: Through the Legal Defense Program in coordination with the Texas City Attorney’s Association, the TML Legal Department submits amicus curiae (“friend of the court”) briefs in state or federal appellate court on behalf of our member cities. The Legal Department receives numerous requests for assistance, and the following information serves as a guide for determining whether TML will employ its resources to provide amicus curiae support:

http://www.tml.org/legal_pdf/LegalDefenseGuidelines.pdf

If you have a case that meets the requirements, please contact the TML Legal Services Department at 512-231-7400 or legal@tml.org.

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

Condemnation: Lehman Harris v. City of Rockwall, No. 05-06-01114-CV (Tex. App.—Dallas July 27, 2007) (mem. op.). Lehman Harris appealed the trial court's judgment in his condemnation case against the City of Rockwall. Harris argued that the trial court should not have instructed the jury to consider “any enhancement to the value of the property that resulted from the condemnation project itself for which the property was taken” when valuing his property. The court of appeals noted that the Supreme Court of Texas has held that compensation for value enhanced by the condemnation project itself would place the landowner in a better position than he would have enjoyed had there been no condemnation. See Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 627 (Tex. 2002). The court of appeals held that the trial court did not abuse its discretion when it overruled Harris's objection to the enhancement instruction and affirmed the trial court’s judgment.

Property Tax: Houston Indep. Sch. Dist. v. Old Farms Owners Ass'n, Inc., No. 01-04-00538-CV (Tex. App.—Houston [1st Dist.] July 26, 2007). The City of Houston and other taxing units challenged the trial court's decision that the taxing units are not entitled to penalties and interest for delinquent taxes owed for tax year 1997 on 4.3 acres of real property. The property owner argued that it did not owe the penalties and interest because the tax bill was initially sent to the wrong address and no notice of delinquency was sent in 2000 as required by the Tax Code. The court of appeals held that a taxing unit is required to mail the tax bills only to the address found in its most recent records, which the taxing unit did in this case, even though it was the wrong address. The court of appeals also held that the provision requiring a delinquent notice be sent in 2000 did not apply to this case because the delinquent taxes were due when the amendment requiring the delinquent notice was adopted. See TEX. TAX CODE 33.04. The court of appeals reversed the portion of the trial court's judgment denying the taxing units' request for penalties and interest and remanded the case for the limited purpose of determining the amount of interest and penalties to be awarded the taxing units.

Civil Rights: City of San Antonio v. Tex. Waste Sys., Inc., No. 04-06-00481-CV (Tex. App.—San Antonio July 18, 2007) (mem. op.). The City of San Antonio appealed the trial court’s finding of equal protection violations by the city and argued that the evidence presented at the bench trial was insufficient to support the trial court's finding that the city discriminatorily enforced a permit ordinance against Texas Waste Systems (TWS). The court of appeals found that: (1) the evidence was uncontradicted that TWS was delinquent on its payment to the city; (2) TWS owed the most money to the city; (3) no evidence was presented that the city discriminated against TWS on an impermissible basis, such as race; and (4) no evidence was presented that the city was even aware of TWS's status as a minority-owned business. The court of appeals reversed the trial court’s judgment and judgment was rendered for the city against TWS for damages and attorney's fees and costs.

Sovereign Immunity-Tort: City of Houston v. Mary M. Babin Kennedy, No. 01-07-00097-CV (Tex. App.—Houston [1 Dist.] Aug. 02, 2007) (mem. op.). The City of Houston appealed an order denying its plea to the jurisdiction on grounds of governmental immunity from suit in a wrongful death action brought by Mary M. Babin Kennedy. Kennedy sued the City after her husband died, allegedly due to paramedics’ refusal to transport her husband to the hospital after they responded to Mrs. Kennedy’s 9-1-1 call. Kennedy argues that the city waived its immunity under the Tort Claims Act. The trial court denied the city’s plea to the jurisdiction, but granted partial motions for summary judgment for the city. The court of appeals held that a governmental unit has no sovereign immunity in an action involving a claim related to 9-1-1 emergency service unless: (1) governmental immunity is waived under Section 101.021; and (2) the action violates a statute or ordinance or constitutes conscious indifference to the safety of a patient. The facts alleged by Kennedy did not demonstrate that the paramedics operated or used any medical equipment either in a wrongful or negligent fashion as required to waive immunity under Section 101.021. The court of appeals affirmed the trial court's orders granting the motions for partial summary judgment and to dismiss, and vacated the order denying the plea to the jurisdiction.

Sovereign Immunity-Contract: City of Pasadena v. Crouch/KST Enters., Ltd., No. 01-07-00133-CV (Tex. App.—Houston [1 Dist.] Aug. 02, 2007) (mem. op.). Kinsel and the City of Pasadena had a contract to build a wastewater treatment plant. Kinsel had a subcontract with Crouch to perform some of the work. The city was not a party to the contract between Crouch and Kinsel. During the project, Crouch sued Kinsel, arguing that Kinsel had caused delays in the project, costing Crouch added expense. Kinsel responded by filing a motion for leave to designate the city as a Responsible Third Party, asserting that the unanticipated increase in the cost suffered by it and its subcontractors was a result of the delay caused by the actions and omissions of the city. The trial court denied the city’s plea to the jurisdiction filed in response to the breach of contract suit. In the court of appeals, the city argued that there was no waiver of governmental immunity because: (1) the statutory waiver provided for in Section 271.152 of the Local Government Code cannot be invoked by a third-party beneficiary to a contract; and (2) even if it could be invoked by a third-party beneficiary, Crouch is not a third-party beneficiary as a matter of law. The court of appeals held that, even if immunity can be waived by a third-party beneficiary to the contract, Crouch cannot assert a claim for third-party beneficiary status because the original contract between Kinsel and the city did not clearly express the intent of the parties to confer any benefit on third parties. Absent third-party beneficiary status, Crouch cannot assert a claim for breach of the city’s contract and, thus, cannot invoke the waiver of governmental immunity under Section 271.152 even if the statute permits it to do so. The court of appeals reversed the trial court's order denying the city's plea to the jurisdiction, as to Crouch's claims only, and rendered judgment that Crouch's claims against the city be dismissed for want of jurisdiction.

Sovereign Immunity-Contract: City of Carrollton v. Craig B. Singer, No. 2-06-322-CV (Tex. App.—Fort Worth Aug. 2, 2007). The Singers sued the City of Carrollton for breach of contract claims related to the city’s acquisition of some of the Singers’ property for road construction. The city argued that it is entitled to immunity from the breach of contract claims. The Singers argued that the city did not have immunity from suit because its contract with the Singers was, in essence, a settlement agreement of an eminent domain claim. The trial court agreed and denied the city's plea to the jurisdiction. The court of appeals held that, by contracting with the Singers to perform certain improvements in exchange for a portion of the Singers’ property for the city’s use as a roadway, the city entered into a settlement agreement of an eminent domain claim, thereby submitting to the trial court’s jurisdiction under the Texas Constitution and the reasoning of Texas A & M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002). The court of appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

Drainage Fees: Greater New Braunfels Home Builders Ass'n v. City of New Braunfels, No. 03-06-00241-CV (Tex. App.—Austin Aug. 01, 2007). The Home Builders Association sued the City of New Braunfels, arguing that the “storm water connection fees” it charged were “drainage fees” under Subchapter C of chapter 402 of the Texas Local Government Code, and were not properly adopted as such. After a trial on the merits, the trial court ruled in favor of the city, finding that because the storm water connection fee “is not intended for use to off-set capital improvements,” it is not a drainage charge under Chapter 402 of the Local Government Code, and that the city's adoption of the ordinance imposing the “storm water connection fee” was authorized under the city's police power as a home-rule city. The court of appeals held that, since the city had adopted the provisions of Chapter 402, and the fees fit the definition of drainage charges under the statutory scheme, the storm water connection fee and the storm water development fee are drainage charges under Chapter 402. The court of appeals also held that the city failed to follow the statutory requirements imposed by Chapter 402, including publishing notices, holding hearings, assessing the charges against all property owners within the service area, and exempting lots on which no structure exists. The court of appeals reversed the trial court’s judgment and rendered judgment declaring that the complained-of portions of the city’s storm water fee ordinances were invalid as improperly-adopted Chapter 402 drainage charges.

Employment: Teresa Ward Cooper v. City of Dallas, No. 05-06-00729-CV (Tex. App.—Dallas July 30, 2007). Cooper sued the City of Dallas after being terminated for failing to return to work after her short term disability leave. The administrative law judge determined that Cooper had violated the city’s personnel rules through her inability to return to work, but he determined her termination was improper because there was no Internal Affairs Division investigation as required by the department’s general orders. The judge ordered her reinstated into her previous status of being on leave without pay. Cooper appealed the administrative law judge’s determination. The district court found there was substantial evidence to support the administrative law judge's decision, and the court denied Cooper’s requests for relief. The court of appeals held that the substantial evidence standard of review used by the district court was correct, and affirmed the district court’s judgment.

Civil Service: Keith Lowell, et al. v. City of Baytown, No. 01-04-00548-CV (Tex. App.—Houston [1 Dist.] Aug. 09, 2007). Firefighters, including Lowell, sued the City of Baytown based on the Civil Service Act and a collective bargaining agreement, claiming that the city had not paid the firefighters their seniority pay when the firefighters temporarily filled in at a higher position. The trial court granted the city’s plea to the jurisdiction and dismissed the firefighters’ claims for lack of subject matter jurisdiction. The firefighters argue that: (1) their claims under the Declaratory Judgments Act do not implicate governmental immunity; (2) the City’s immunity from suit is waived as to claims under the Civil Service Act; (3) if it was appropriate for the trial court to dismiss appellant's claims, the trial court should not have dismissed them with prejudice; and (4) because the trial court dismissed the case based only upon the city’s immunity from suit, the court of appeals cannot affirm the dismissal on the basis that the firefighters did not exhaust their administrative remedies. The court of appeals affirmed the trial court’s judgment to the extent that it dismissed the firefighters’ claims for money damages because case law has foreclosed any award of money damages under the Civil Service Act unless the legislature gives firefighters permission to sue. The court of appeals then reversed the trial court’s judgment to the extent that it dismissed the firefighters’ claims for declaratory and injunctive relief and remanded the case to the court below for further proceedings.

Employment: City of La Joya v. Norma Olivarez, No. 13-06-463-CV (Tex. App.—Corpus Christi-Edinburg July 26, 2007). In this case, the city fired an employee, and the employee filed a discrimination and retaliation complaint with the EEOC. The city contended that the trial court lacked jurisdiction to hear the case because the complaint had not been timely filed with the EEOC. The trial court ruled against the city, and the city made an interlocutory appeal to the court from the trial court’s order denying the city’s plea to the jurisdiction. The city argued that the trial court erred in denying its plea to the jurisdiction based on the fact that the employee did not timely file her complaint with the EEOC, therefore the court lacked jurisdiction. The city also argued that the trial court should not have admitted into evidence the date-stamped cover letter of the appellee’s complaint. The court overruled the city on both issues, holding that since the letter was date-stamped before the deadline to file the complaint, there was a genuine issue of fact, and the trial court did not err in either considering the evidence or denying the city’s plea to the jurisdiction.

Ordinance Enforcement: Maguire Oil Company v. City of Houston, No. 14-05-01272-CV (Tex. App.—Houston [14th Dist.] July 24, 2007). Maguire sought reversal of a judgment in favor of the city on a plea to the jurisdiction regarding the enforcement of an ordinance prohibiting drilling within 1,000 feet of a lake. Maguire argued that the trial court erred both in determining that the case was not ripe for adjudication, and also by dismissing the appellant’s claims, because the city’s plea to the jurisdiction did not address both of the its theories of recovery. The court held that the ordinance prohibiting drilling in the location in question did not include the ability to appeal, since it was a flat prohibition, rather than a permit process where the appellant had been denied. Since there was no appeal process in place, the court held that the appellant was required to get to a final administrative decision, not exhaust his administrative remedies. The appeals court held that the trial court had erred in determining that the case was not ripe, and rejected the city’s contention that the appellant should have sought a writ of mandamus or injunction to force the city to issue the permit. The court sustained the appellant’s ripeness issue and reversed and remanded the case.

Sovereign Immunity-Tort: Raul Garza v. City of Houston, No. 14-06-00475-CV (Tex. App.—Houston [14th Dist.] July 24, 2007)(mem. op.). This was an appeal from a summary judgment in favor of the city in a case involving a car accident between a police officer responding to a call and Garza. Garza argued that there was material fact at issue regarding sovereign immunity and that the trial court erred in granting summary judgment. The court held that since the officer was acting in good faith and was performing discretionary duties that were within the scope of his employment with the city, he and the city were entitled to sovereign immunity. While the accident involved the operation of a motor vehicle, it was an emergency vehicle in an emergency situation, and fell under an exception from the waiver of liability for motor vehicle-related accidents under the Texas Tort Claims Act, making the standard such that the employee knew or should have known that his actions posed a high risk of serious injury. The court found that the officer was acting reasonably and upheld the summary judgment in favor of the city.

Sovereign Immunity-Contract: City of Houston v. Clear Channel Outdoor, Inc., No. 14-07-00084-CV (Tex. App.—Houston [14th Dist.] July 31, 2007). The city filed a plea to the jurisdiction asserting that a contract to purchase a billboard from Clear Channel was not properly executed because it was not signed by the mayor and city controller as required by the city’s charter. The city argued that, because of the improper execution, the contract does not fall into the limited waiver of sovereign liability for breach of contract claims. The court held that since the city council approved the purchase and the city charter also states that any ordinance, resolution, or motion of the city council shall take effect even if the mayor does not sign it, the contract was entered into validly by the city’s agent. The court held that, taken together, the action of the city council and the agreement between the city’s agent and the Clear Channel constitute a written contract, and fell within the waiver of sovereign liability for breach of contract suits.

Civil Service: Layne Stanford v. City of Lubbock Fire Fighter and Police Officer Civil Serv. Comm’n, No. 07-06-0076-CV (Tex. App.—Amarillo July 26, 2007). Stanford, a City of Lubbock firefighter who was ranked highest on the Lubbock Fire Department’s eligibility list for promotion, was arrested and charged with driving while intoxicated and unlawfully carrying a weapon. When a vacancy later occurred, the fire chief bypassed Stanford for a promotion without taking any disciplinary action or reducing his salary. Stanford appealed the decision to the civil service commission, which found that that the fire chief had a valid reason for the promotional bypass and that the fire chief’s decision was not disciplinary in nature. Stanford filed suit against the city and the civil service commission alleging that the city and the commission had violated various sections of Chapter 143 of the Texas Local Government Code, and that commission’s decision in sustaining the fire chief’s decision was not supported by substantial evidence. Without specifying any grounds, the trial court granted summary judgment in favor of the city, and the court of appeals affirmed.

Zoning: Kyung Park, Sunghee Park, and Piola Services, L.L.C. v. The City of San Antonio, No. 08-06-00102-CV (Tex. App.—El Paso July 19, 2007). Kyung and Sunghee Park (“Park”) purchased property abutting a residential area, which, upon Park’s request, was re-zoned to include a provision for specific business use as a golf driving range. In addition to the driving range, Park developed the property for use as a club house, and for batting cages. The city approved a site plan that included plans to build high fences made out of netting along the side of the property, and issued a certificate of occupancy for the business, but did not specifically issue a permit to build the fences. In response to complaints from residents of the neighborhood that golf balls were landing in their backyards, Park raised the height of the fences to forty feet without notifying the city. After a storm caused the fences to break, Park applied for a repair permit to replace the wooden poles with steel. The city denied Park’s permit. Park applied for a zoning variance and a permit to make the repairs from the Board of Adjustment (BOA). The BOA denied the variance because the city’s zoning and building regulations did not permit fences that exceeded six feet in height without a variance, and Park never applied for a permit specifically for the fence. Park appealed the decision to the district court, which remanded the case to the BOA for reconsideration. When the BOA refused to grant the variance, Park gave up on pursuing the driving range business, tore down the fence, and closed that part of the facility. Without income from the driving range, Park’s business faltered, and the property was eventually foreclosed and sold. Park did not investigate the market value of the property following denial of the variance and did not attempt to market the property for alternative development. Park filed a lawsuit against the city, alleging that the city was negligent and grossly negligent by re-zoning the property and had failed to warn of the restrictions on fence heights. Park also asserted a claim for inverse condemnation alleging that the city’s regulations constituted a “taking” of the property for public use. The trial court granted partial summary judgment in favor of the city on the Park’s negligence and gross negligence claims, and also entered judgment in favor of the city on the inverse condemnation claim. The court of appeals affirms the trial court’s judgment and held that the city’s actions did not constitute a regulatory taking for which Park is entitled to compensation.

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-0558 (Real Property Conveyance): concludes that a home rule city may lease parkland to an independent school district if the lease will serve a public purpose of the city in compliance with Local Government Code section 272.005. If the lease requires the use or taking of parkland, the city must hold a hearing and make the determinations required by Texas Parks and Wildlife Code Chapter 26. With respect to a lease of public land, Local Government Code section 272.005(b)(3) abrogates the requirement in Parks and Wildlife Code Chapter 26 that the City notify the public of the school district's proposed use or taking of parkland by publishing notice in a qualifying newspaper of general circulation. A home rule city may sell parkland to an independent school district for no less than fair market value. The city must comply with Parks and Wildlife Code Chapter 26, including its notice and publication requirements, if the sale requires the use or taking of parkland.

Opinion No. GA-0559 (Tax Freeze): concludes that Texas Constitution Article VIII, Section 1-b(h), authorizes counties to adopt a tax limitation or "freeze" applicable to the residence homesteads of persons who are disabled or sixty-five years of age or older. The property taxes on a qualified residence homestead are limited in subsequent years to the amount of tax imposed in the base year. In DeWitt County, where the voters adopted the tax limitation, the limitation became effective and the base year was established without action by the commissioners court. For DeWitt County taxpayers whose residence homesteads qualified for the tax limitation in 2005, the base year is 2005.

Opinion No. GA-0560 (Court Fees): concludes that the Justice Court Technology Fund established under Code of Criminal Procedure Article 102.0173 may be used only for technological enhancements for the justice court and continuing education and training for justice court judges and clerks regarding technological enhancements. Whether the purchase of a computer for a constable serves as a technological enhancement for the justice court is a fact question to be determined by the commissioners court in the first instance. The Fund may not, however, be used to finance continuing education and training for a constable.

Opinion No. GA-0561 (Alcohol Regulation): concludes that, under the terms of the Texas Alcoholic Beverage Code, a pool hall may operate on a BYOB ("bring your own bottle") basis without a permit or license from the Texas Alcoholic Beverage Commission. Moreover, the City of Corsicana may not by municipal ordinance regulate the possession or consumption of alcoholic beverages within a pool hall that operates on a BYOB basis.

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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