TCAA NEWS
(Volume 5, Issue 7—August 2010)
"Your Source for Information About the Texas City Attorneys Association"
News and Updates

Former TCAA President Susan C. Rocha: Susan passed away on August 13, 2010. She will be sorely missed. The funeral service was held in San Antonio on August 17. For those wishing to further honor Susan’s memory, donations can be made to the Susan C. Rocha Memorial Fund, 2517 North Main, San Antonio, Texas 78212.

Retirement Reception for Ron Neiman: Ron Neiman, the longtime Lewisville city attorney, is retiring. A reception in his honor will be held on Thursday, August 26, 2010, from 3:00 – 5:00 p.m. at the Lewisville Municipal Annex. The annex is located at 1197 West Main Street in Lewisville.

TCAA to Fill Board Position on October 28, 2010: 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 8, 2010.

TCAA Fall Seminar! The TCAA Fall Seminar in conjunction with the TML Annual Conference is scheduled for October 28, 2010, in Corpus Christi. A link to registration and hotel information is available on the front page of www.texascityattorneys.org. This year’s topics include:

  • Breach of Contract Claims – Chapter 271 Update
  • Recent State Cases of Interest to Cities
  • How Much Will that Substandard Building Demolition Really Cost You?
  • Future Municipal Water Supplies – From Planning to Implementation
  • Legislative Forecast, Including Federal Collective Bargaining Update
  • Recent Federal Cases of Interest to Cities
  • TABC Update
  • Recreational Use Statute Update
  • Employee Privacy and Free Speech Rights Update
  • Ethics – City Attorneys and the Attorney-Client Privilege

Time Warner Digitalization of PEG Channels – Coalition of Cities: Those cities served by Time Warner Cable may be interested in a coalition of cities that is forming to oppose Time Warner’s proposed digitalization of public, educational, and governmental (PEG) channels. Time Warner currently delivers PEG access channels in an analog format. As a result, the PEG access channels are available to every subscriber without any additional charges or equipment. The coalition is arguing that the current format has proven to be an effective and reliable means of reaching all subscribers. In July, Time Warner announced that, while broadcast channels would continue to be available in an analog format, Time Warner would provide PEG channels only in a digital format. If your city is concerned with the switch, please contact Kevin Pagan, city attorney for McAllen, at 956-681-1090 to inquire about joining the coalition.

Scenic Texas Sign Law Seminar: The Texas Municipal League and the Texas City Attorneys Association are co-sponsoring a Scenic Texas sign regulation seminar on September 16, 2010, at the Austin Hilton Hotel. Given the complex nature of sign regulation in the courts and at the local, state, and federal levels, there is a demand for legal education in this area. The event will offer 5.5 hours of CLE credit. For more information or to register, please contact Holly Eaton with Scenic Texas at 713-629-0481, ext. 11.

2010 Summer Conference Available Online: TCAA Online Seminars allow city attorneys, assistant city attorneys, and attorneys who regularly practice municipal law to purchase and view a video of past seminars in a single-session format. The viewing of the session, along with the completion of an evaluation and participation in the LisTCAA listserv, allows attorneys to receive participatory CLE credit with the State Bar. The purchaser will receive a confirmation e-mail with a link to each online session that is purchased. The link will send the purchaser to a Web page that will have all materials and other necessary items linked through buttons beside the video screen. Important Note Regarding Access to Sessions: The purchase of a session or sessions will not allow immediate access. Once payment is confirmed, a confirmation e-mail with a link to the session or sessions will be e-mailed to the purchaser. That process may take up to two business days, but is often faster. To view available seminars, please go to www.texascityattorneys.org and click on “TCAA Online Seminars” on the front page.

LisTCAA Listserv: Many Texas city attorneys participate in the International Municipal Lawyers Association Municode listserv. Now's your chance to glean and share information on a listserv that consists only of Texas attorneys! To join, please go to www.texascityattorneys.org and click on the "LisTCAA" link on the left side of the page.

IMLA Conferences: The International Municipal Lawyers Association conducts various seminars that complement the TCAA programs. This month's featured seminar is IMLA's 2010 Annual Conference. The conference will be held on October 10-13, 2010, at the Hilton New Orleans Riverside. For more information or to register, go to www.imla.org and click on "events."

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

Articles

Fraudulent Bonds: Is your Surety Secure? Jeffrey S. Chapman, Ford, Nassen & Baldwin, P.C.
In tough economic times, we expect to see more reports of fraudulent surety bonds. The American Subcontractors Association, for example, estimates that losses from surety bond fraud may be as high as $800 million annually. How can you guard against fraudulent security bonds? Read more.

TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed

Incorporation in the ETJ: In Re Louis F. Brouse, No. 10-10-00263-CV (Tex. App.—Waco 2010)(Petition for Emergency Writ of Mandamus). The issue in this case is whether the citizens of a home rule city, through a charter initiative petition, can force the city council to grant consent to a community to incorporate in the city’s extraterritorial jurisdiction (ETJ). The Relator argued that the city’s charter allows for an initiative election regarding the city’s boundaries. TML and TCAA argued that multiple courts have held that municipal boundaries are not the proper subject of an initiative election. The amicus brief was filed on July 30, 2009. On August 17, 2010, the Waco Court of Appeals dismissed the petition and held that the initiative process is not the proper means to obtain municipal consent to incorporation in the ETJ. The case was appealed to the Supreme Court of Texas on August 24, and the Court denied the petition on the same day.

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.

Eminent Domain - Immunity: DART v. Oncor, No. 05-09-01500-CV (Tex. App.—Dallas July 29, 2010). Oncor Electric Delivery Company (Oncor) filed an eminent domain proceeding against the Dallas Area Rapid Transit (DART) and the Fort Worth Transportation Authority (The T). Oncor sought an easement for an electric transmission line. DART and The T filed a plea to the jurisdiction based on governmental immunity. The trial court denied the plea, and DART appealed. The court of appeals concluded that, even though Section 181.004 of the Texas Utilities Code provides that an electric corporation has the right and power to “enter on, condemn, and appropriate the land, right-of-way, easement, or other property of any person or corporation,” governmental immunity applies in eminent domain proceedings. The court rejected Oncor’s arguments that: (1) the legislature waived DART’s and The T's governmental immunity by granting Oncor the power of eminent domain; (2) governmental immunity is preempted by the Public Utility Commission’s statutory powers to regulate Oncor; and (3) DART and The T waived governmental immunity by not challenging the routing of Oncor’s electrical transmission line. The appeals court reversed the trial court’s order denying the plea and rendered judgment dismissing the action.

Open Meetings Act: San Miguel v. City of Laredo, No. 04-09-00612-CV (Tex. App.—San Antonio July 14, 2010) (mem. op.). After the city hired a new police chief, a candidate who was not selected sued the City of Laredo (City) for violations of the Texas Open Meetings Act (Act) during the hiring process. The candidate, Mr. San Miguel, alleged that the city violated multiple provisions of the Act over several meetings. He sought a judicial declaration that the new police chief’s hiring was null and void due to the alleged violations of the Act, and a writ of mandamus to prevent the City from continuing to violate the Act. The City moved for a traditional summary judgment, which the trial court granted. Mr. San Miguel appealed.

For the second meeting in the process of hiring the new police chief, the City’s agenda stated that the city council would receive a “presentation…regarding the recruitment process of the Chief of Police position…with possible action.” During the discussion of this item, the council authorized the city manager to make the salary negotiable, hire a professional recruiter, and explore the educational and work-experience requirements for the position. Mr. San Miguel argued that this did not fall under the stated “subject” of the meeting as listed on the agenda. The court disagreed, holding that all actions taken by the council flowed from the consideration of the subject on the agenda, and found that there had been no violation of the Act.

At the third meeting, the city council authorized the city manager to enter into a contract with a professional recruiter. Mr. San Miguel alleged that during the council meeting, the city manager stated that the recruiter would have “no more than 75 days.” Mr. San Miguel argued that because the person eventually hired for the police chief position submitted his application sometime after that 75 day period, that was a violation of the Act. The court again disagreed, finding that the council followed the language on the agenda properly, and that the submittal of an application after a verbal deadline did not constitute a violation of the Act.

During the fourth meeting, the city council met in executive session to discuss issues related to the police chief search. Mr. San Miguel alleged that the certified agenda of the executive session contained no record of the proceeding. However, the court held that there was no violation because the certified agenda stated the subject matter of the deliberation, contained a record of any further action, and also contained the times of the beginning and ending of the meeting (as required by Texas Government Code §551.103).

The fifth meeting had no mention of the police chief hiring process, but the city manager announced the names of the finalists for the position and reminded the councilmembers of a meet-and-greet session with the candidates and an upcoming council meeting to interview the candidates. Mr. San Miguel argued that this announcement, because it did not appear on the agenda, was in violation of the Act. The court cited Texas Government Code §551.042(a) as exempting the following from the notice requirements of the Act: (1) statements of specific factual information given in response to an inquiry; or (2) a recitation of existing policy in response to an inquiry. The court held that, because a city councilmember asked for an update and the city manager responded with factual information, including the names of the finalists, and because there was no action taken on the information, that there was no violation of the Act.

The sixth meeting discussed in the case was “an informal meet-and-greet” involving members of the city council, the finalists for the police chief position, and members of the media. Mr. San Miguel argued that because notice of the meeting was not posted on the Internet as required by Texas Government Code §551.056(a) and (b), it was held in violation of the Act. The City argued that the gathering was not a “meeting” under the definition in the Act. TEX. GOV’T CODE §551.001(4)(B). The court agreed with the city, finding that there was no dispute that the mayor and several councilmembers spoke to the finalists, but that there was no evidence that a majority of the councilmembers posed questions to each finalist or responded to questions posed by the finalists. Because nothing in the record revealed the specific nature of any conversation between a finalist and member of the governing body, the court held that there was no fact issue regarding whether any conversation between a finalist and member of the governing body included city business. Thus, the court held, the City conclusively established that there was no “meeting” held under the definition of the term in the Act. Id.

The seventh meeting included formal interviews of the finalists by the city council. Mr. San Miguel argued that because the item regarding the formal interviews was under the “Staff Reports” section of the agenda, it led the public to believe that there would be reports about interviews by staff, rather than live interviews of the finalists by the council. However, the agenda went on to state that each candidate would be given a certain amount of time for questions and answers, and the court held that this made the agenda sufficiently specific to alert the general public that live interviews were to be conducted. The city manager also excluded finalists from the room while other finalists were being interviewed, which Mr. San Miguel argued was not proper under the Act. However, the court held that since the minutes for the meeting showed that no finalist objected to being excluded, and that Mr. San Miguel himself did not state that he raised any objections, the exclusions did not violate the Act.

During the final meeting, the city council went into executive session to discuss the chief of police position. Mr. San Miguel again argued that there was no “true and correct record” of the executive session kept, as required by the Act. TEX. GOV’T CODE §551.103(a). The court disagreed, and found that the certified agenda was sufficient and the executive session did not violate the Act.

The appeals court concluded overall that the City conclusively established that the Act was not violated with regard to any of the meetings cited by Mr. San Miguel, and overruled his issues. The court affirmed the trial court’s summary judgment in favor of the City.

Civil Service: City of Fort Worth et al., v. Davidsayer, No. 2-09-458-CV (Tex. App.—Fort Worth July 29, 2010). Davidsayer sued the city when his civil service exam score did not contain the bonus points for seniority that he expected. The bonus points he received were based on the city’s meet and confer agreement instead of the Local Government Code.

Chapter 143 of the Local Government Code provides a system of employment based on merit and fitness. The chapter provides a procedure for classifying police officers through promotional exams. See TEX. LOC. GOV’T CODE §§ 143.021-038. It also allows a city to enter into meet and confer agreements that control the terms and conditions of police officer employment. See id. §§ 143.301-.313. Those terms and conditions must be bargained for in a written agreement. Section 143.306 gives the district court jurisdiction and full authority to interpret and enforce a written bargained for agreement. The City of Fort Worth entered into such an agreement with the police association that represents its police officers. The agreement stated that officers would receive one bonus point for each year the individual served in his current classification and also points for his education. Section 143.033 uses a different calculation. The statutory calculation gives the individual one point for each year the individual serves as a police officer, regardless of rank. Section 143.307 provides that the agreement may supersede state law.

Davidsayer sued under the agreement and Chapter 143. The city argued that he did not have standing to sue under the agreement.

The agreement states that the association and the city are the two parties to the contract. It also provides a dispute resolution procedure for resolving disagreements between the association and the city. That procedure begins when a police officer submits a written dispute to the Association. The dispute resolution committee then meets to decide whether a dispute exists and whether the association should prepare a formal written grievance.

The court held that the contract does not give individual police officers standing to sue under the contract, and that the Chapter 143 provisions that give an individual a right to sue were superseded by the agreement.

Collective Bargaining: City of Round Rock v. Rodriguez, et al., No. 03-09-00546-CV (Tex. App.—Austin July 21, 2010). Rodriguez and other fire fighters sued the City of Round Rock when they were denied association representation at an internal investigatory interview. The Round Rock Fire Fighters Association also sued the city to gain the right to represent these fire fighters at investigations. The city argued that: (1) the fire fighter and association did not have standing; and that (2) Section 101.001 of the Labor Code does not provide “Weingarten Rights” in non-collective bargaining cities.

Standing

The city argued that the fire fighter and the Association did not have standing because: (1) the case is moot because the fire fighter accepted the discipline that resulted from the hearing; (2) the fire fighter failed to exhaust his administrative remedies; and (3) the association does not have associational standing.

The court held that the fire fighter’s case is not moot because it is “capable of repletion yet evading review.” See Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999); Lakey v. Taylor, 278 S.W.3d 6, 12-13 (Tex. App.—Austin 2008, no pet.). In this case, the fire fighters’ cases would always become moot quickly because the city would deny representation at the hearing and then the hearing would go forward. The fire fighter did not fail to exhaust his administrative remedies because his complaint was about not being represented by the association. It was not about the discipline incurred under Chapter 143 of the Local Government Code.

The court next reviewed associational standing. An association has standing to sue if: (1) its members have an individual right to sue; (2) the interests the individual seeks to protect are part of the association’s purpose; and (3) the association’s claim and relief request does not require the participation of individual members to the lawsuit. Tex. Asso’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993). The court held that the individual fire fighter in this case has standing. Representing members at investigatory hearings is something the association is designed to do. And the question of whether Section 101.001 of the Labor Code gives an individual the right to representation does not require the participation of individual members. Thus, the association has standing.

Labor Code Section 101.001

The city argued that the individual fire fighter does not have the right to representation at investigatory hearings because: (1) the city is not a collective bargaining city; and (2) Section 101.001 does not provide the right to representation, known as a “Weingarten right.”

Section 101.001 of the Labor Code states:

All persons engaged in any kind of labor may associate and form trade unions and other organizations to protect themselves in their personal labor in their respective employment.

“Weingarten rights” come from the case of National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975). Weingarten held that an employee has a right to union representation when involved in an interview that may lead to discipline under Section 7 of the National Labor Relations Act. Id. at 260 (Section 7 is 29 U.S.C. 157). However, the National Labor Relations Act does not apply to public employees. 29 U.S.C. 152.

The issue in this case became whether Section 101.001 of the Labor Code gives the same or similar rights as Section 7 of the National Labor Relations Act. The court held that Section 101.001 applies to public employees because the plain language of the statute says “all persons.” The court also noted that the legislature did not distinguish between private and public employees in the statute. The court based its decision on the legislative history of the predecessor statute to Section 101.001 and the Supreme Court of Texas case Lunsford v. City of Bryan. 297 S.W.2d 115 (Tex. 1957) (holding that the purpose of “right to work” statutes is to protect all classes of employees).

The court stated that the Texas legislature, when it passed Section 101.001, was aware of “Weingarten rights” and Texas courts’ historical examination of federal labor law when analyzing state labor law. The court held that public employees have the right to representation at investigatory hearings, the same as required under federal law for private employees. The language in Section 7 (29 U.S.C. § 157) is substantially similar to Section 101.001 of the Labor Code. The “Weingarten rights” are available to all public employees, even those in cities without collective bargaining, because Section 101.001 allows “all persons” to “associate and form” not only unions but “other organizations.” TEX. LAB. CODE § 101.001.

Conclusion

The Austin Court of Appeals held that all public employees have the right to representation in investigatory hearings under Section 101.001 of the Labor Code. This right exists despite the lack of a collective bargaining agreement.

Declaratory Judgments Act: City of Dallas v. Turley, No. 05-09-00791-CV (Tex. App.—Dallas, July 13, 2010). In 1973, a plat was filed with the City of Dallas dedicating a street easement across the back of properties owned by a group of landowners. A water line, a sewer line, and a fire hydrant were installed there and accepted by the Dallas City Council. Over 30 years later, the landowners filed a lawsuit seeking an injunction and other relief to keep the city from opening the easements to traffic, constructing any public utilities in the easements, or making any other public use of them.

The landowners alleged a claim for adverse possession and sought injunctive and declaratory relief under the Texas Declaratory Judgments Act. The city filed a plea to the jurisdiction claiming that it was immune from suit. The trial court granted a portion of the city’s plea to the jurisdiction, dismissing the landowners’ claims for injunctive relief, adverse possession, and declaratory relief pursuant to the Texas Water Code. However, the trial court denied the city’s plea as it related to the landowners’ other requests for a declaration that the city had abandoned its easements and had not accepted the easement dedications. Both the city and the landowners appealed.

The issue on appeal was whether or not governmental immunity bars the claims brought by the landowners against the city. The landowners contended on appeal that the Declaratory Judgments Act allowed them to obtain a declaration regarding their rights under a statute or municipal ordinance. See TEX. CIV. PRAC. & REM. CODE § 37.004. However, the court of appeals stated that Section 37.006 of the Civil Practice and Remedies Code provides that a municipality waives immunity from suit only in a proceeding that challenges the validity of a municipal ordinance or statute. The court of appeals relied heavily on the recent Supreme Court opinion in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). In Heinrich, the Court held that governmental entities, but not the officers of those entities, are immune from suit under the Declaratory Judgments Act unless the claim challenges the validity of an ordinance or statute. 284 S.W.3d 372-73. In this case, the landowners brought their claim against the city itself, and did not challenge the validity of a city ordinance or statute. Consequently, the city was immune from the claims brought by the landowners.

Governmental Immunity-Tort: City of Missouri City v. Passanta, et al., No. 14-09-00634-CV (Tex. App.—Houston [14th Dist.] August 3, 2010) (mem. op.). The court of appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction because governmental immunity under the “good faith” exception to the Texas Tort Claims Act was not conclusively proven by the city. There was a fact issue regarding whether the police officer’s driving through an intersection where his car collided with the plaintiff’s vehicle was appropriate and “in good faith.”

Governmental Immunity-Contract: City of Houston v. Estate of Jones, No. 14-09-00812-CV (Tex. App.— Houston [14th Dist.] August 3, 2010). The court of appeals held that the city’s governmental immunity may have been waived under Chapter 271 of the Local Government Code. Thus, the city’s plea to the jurisdiction should not be granted.

Sanctions: Hinton v. City of Garland, No. 05-09-00069-CV (Tex. App.—Dallas August 3, 2010) (mem. op.). A motion for sanctions filed within 30 days of a trial court’s judgment of nonsuit against the city’s claims extended the trial court’s plenary jurisdiction to consider Hinton’s sanctions claims against the city.

Employment Discrimination; Whistleblower Act: Flores v. City of Liberty, et al., No. 09-09-00532-CV (Tex. App.—Beaumont August 5, 2010). The court dismissed Flores’ discrimination claims because Flores failed to produce evidence that similarly situated employees were treated differently than Flores. Also, Flores failed to show that he had reported a violation of law by a City of Liberty official.

Land Use: Sea Mist Council of Owners v. Board of Adjustment, et al., No. 13-09-601-CV (Tex. App.—Corpus Christi-Edinburg July 22, 2010) (mem. op.). The court held that the plaintiffs’ appeal from a decision of the board of adjustment was untimely even though the board of adjustment had never adopted a time limitation as required by Section 211.010 of the Local Government Code. The appeal was untimely under the common law because it was six months after the building permit was issued, four months after the occupancy permit was issued, and because a landowner has the right to have his permit finally determined.

Governmental Immunity: City of Dallas v. Jones, et al., No. 05-09-01379-CV (Tex. App.—Dallas July 21, 2010). The court of appeals dismissed the plaintiff’s equal protection claims because the plaintiff did not allege that he was treated differently from others who were similarly situated. The court allowed plaintiff’s attorneys fees based on the plaintiff’s declaratory judgment claim because the city’s argument was based on the merits of the attorneys’ fees claim, rather than whether the city was immune from such claims.

Damages: Communities Helping Communities v. City of Lancaster, et al., No. 05-08-01516-CV (Tex. App.—Dallas July 14, 2010). The court of appeals dismissed the plaintiff’s damages claims because the plaintiffs presented insufficient evidence and arguments for damages.

Governmental Immunity-Tort: Old South Amusements v. City of San Antonio, No. 04-09-00466-CV (Tex. App.—San Antonio July 14, 2010) (mem. op.). The city was not liable for conversion for selling gaming machines because the city was engaging in police protection when it seized and sold the gaming machines.

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-0788 (Impact Fees): Concludes that Local Government Code Chapter 395 governs the imposition of impact fees by cities and other political subdivisions. Chapter 395 does not evidence a clear legislative intent, with one exception inapplicable here, to limit the grant or application of credit--for costs incurred by a developer for constructing or financing a category of capital improvement--to any specific category of capital improvement. Therefore, Local Government Code Section 395.019(2) cannot be construed to require a political subdivision to limit the application of a water project credit to water impact fees. Accordingly, while a governmental entity may limit the application of a credit for developer costs for a water project to water impact fees, we cannot conclude that Chapter 395 requires a political subdivision to do so. Thus, Chapter 395 does not preclude a city from applying a credit for a developer's cost of a water line project in a city's capital improvement plan to sewer impact fees due from the new development.

Opinion No. GA-0787 (Property Taxes): Concludes that, if an individual age sixty-five years or older has appropriately filed a deferment of taxes under Section 33.06 of the Tax Code, a property tax lender with a tax lien that was perfected prior to the property owner’s sixty-fifth birthday may not exercise a remedy of foreclosure or judicial sale until the 181st day after the date the individual no longer owns and occupies the property as a residence homestead.

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.
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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