TCAA to Fill Three Board Positions on October 26, 2006: 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 6, 2006. 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) Jonathan Graham.

Chapter 245: Points to Ponder and Potential Problems for Unprepared Cities, Julie Y. Fort, Abernathy, Roeder, Boyd & Joplin, P.C.: Chapter 245 of the Texas Local Government Code is entitled “Issuance of Local Permits.” However, it is generally referred to as the “vested rights statute.” In 2005, the Texas Legislature passed two bills that amended Chapter 245: (1) Senate Bill No. 848; and (2) Senate Bill No. 574. Both bills made significant changes to Chapter 245 and further eroded the regulatory authority of Texas cities. Read more.

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 e-mail any articles or news of interest to city attorneys to Scott Houston at legalgovt@tml.org.

Municipal Attorney Job Openings:

City of College Station, First Assistant City Attorney: This position requires graduation from an accredited law school and admission to practice law in the state of Texas, as well as a significant number of years of progressively responsible professional experience in municipal or other governmental law, with some experience in real estate. Also requires knowledge of principals of municipal law, city ordinances, charter provisions, and statutory provisions related to the authority and operations of municipalities. Excellent research skills and oral and written communication skills are required. Must be a member of the Texas Bar Association and possess qualifications to gain admission to practice in Federal District Court for the Southern District of Texas, the Fifth Circuit Court of Appeals, the U.S. Supreme Court, Federal Bar Association, American Bar Association, Texas City Attorneys Association, and International Municipal Lawyers Association. Experience in commercial transactional work, construction law, economic development and some experience in litigation is preferred. Salary Range: $70,458 - $109,093/yr. Open until filled. Interested applicants should contact the City of College Station Human Resources Department at (979) 764-3517.

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

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.

Sovereign Immunity: City of Midland Roger Goerlitz, No. 03-0185 (Tex. Sup Ct., August 10, 2006). Goerlitz sued the City of Midland for breach of a contract to produce wood chips. The court of appeals held that Section 51.075 of the Local Government Code waived the city’s immunity from suit. The Supreme Court concluded that, under Tooke v. City of Mexia, Section 51.075 does not clearly waive sovereign immunity, and that the holding of Reata Construction Corp. v. City of Dallas and the enactment of Sections 271.151-271.160 of the Local Government Code necessitate a remand to the trial court on the immunity issue.

Tax Warrants: Citizens National Bank in Waxahachie v. City of Rhome, et al., No. 2-05-337-CV (Tex. App. – Fort Worth, August 10, 2006). Weratich Investments, Inc. became delinquent in its ad valorum taxes, and the City of Rhome, Wise County and the Northwest Independent School District (Taxing Authorities) obtained a tax warrant on a Weratich property (Rhome Texaco). Citizens National Bank (CNB) had a security interest and first position lien on the same property through a note between Weratich and CNB. Weratich defaulted on this note. CNB sought a declaratory judgment that the fuel dispensers at the Rhome Texaco were realty, and not subject to the tax warrant. CNB challenged the trial court’s determination that fuel dispensers at the Rhome Texaco were “personalty,” rather than realty, for tax purposes. On appeal, CNB argued that the trial court erred in holding that: (1) the fuel dispensers were not permanent improvements; (2) the fuel dispensers are personal property; and (3) as a matter of law that the fuel dispensers attached to real property are not “fixtures” and are therefore “improvements” as defined by the Texas Tax Code. The appeals court overruled CNB’s first issue, but reversed the judgment of the trial court on the second and third issues. The appeals court also rendered a declaratory judgment that the fuel dispensers are realty and are not subject to sale pursuant to the tax warrant.

Inverse Condemnation: City of Dallas v. Don Blanton, et al., No. 05-05-00736-CV (Tex. App. – Dallas, August 16, 2006). The City of Dallas implemented a plan to replace old sewer mains located at the back of certain properties. The city told the property owners that they would have to re-route their plumbing at their expense from the old main in the back of their properties to the newly installed service lines in the front. The owners demanded that the city re-route the plumbing at the city’s expense. When the city refused, the owners sued for damages for inverse condemnation. The city filed a plea to the jurisdiction asserting governmental immunity. The trial court denied the city’s plea and the city filed an interlocutory appeal. The appeals court concluded that the trial court erred by denying the city’s plea to the jurisdiction, and reversed the trial court’s order and dismissed the claims against the city for want of jurisdiction.

Sovereign Immunity: Paula Construction, Inc., v. City of Lytle, No. 04-05-00317-CV (Tex. App – San Antonio, August 23, 2006). Paula Construction entered into a contract with the City of Lytle on October 14, 2002, to remove sludge material from two of the city’s wastewater treatment ponds. A dispute arose over the amount of sludge material to be removed, and Paula Construction filed suit against the city, claiming that the city failed to pay for services rendered under the contract. The city filed a plea to the jurisdiction arguing that it “has not waived its immunity from suit for any cause of action allegedly arising out of the contract in question.” The trial court agreed and dismissed Paula Construction’s suit against the city for lack of jurisdiction. The appeals court held that the trial court erred by granting the city’s plea to dismiss the suit for lack of jurisdiction and remanded the cause.

Workers’ Compensation: City of Houston v. Dahlia Soriano, et al., No. 14-05-00161-CV (Tex. App –Houston [14th Dist.], August 29 2006). Appellees were all police officers injured in traffic accidents while on duty. As a result of their on-the-job injuries, each officer received an injured-on-duty leave of absence with full pay for the time necessary to recover from their injuries. A dispute arose between the officers and the city when the city asserted liens on the third party recoveries for the workers’ compensation benefits paid to or on behalf of the officers, as well as for the Civil Service Act salary continuation benefits paid to the officers. The officers argued that the city had already been reimbursed when it offset their workers’ compensation temporary income benefits against their regular payroll checks. The trial court entered a judgment in favor of the officers. The appeals court, among other things: (1) reversed the trial court’s refusal to enforce the full amount of the city’s workers’ compensation and salary continuation liens against the police officers’ third party recoveries; (2) reversed the award of attorney’s fees made to the officers, both for trial and appeal, pursuant to the Declaratory Judgment Act, Texas Civil Practices & Remedies Code Section 37.009; (3) reversed the award of pre-judgment interest, post-judgment interest and costs to the police officers; and (4) remanded the award of attorney’s fees and costs to the officers for reconsideration in light of the disposition of the case on appeal.

Personal Injury: Mary B. Smith v. City of Sweeny, No. 13-05-233-CV (Tex. App. –Corpus Christi August 17, 2006). Smith alleged that when she attempted to walk across the street, she fell because the rocks and shells used to repair a street were loose. She contends that the trial court erred in granting summary judgment in favor of the city because the area in the street where she fell constituted a “special defect” under the Texas Tort Claims Act, thus subjecting the city to liability for personal injuries to her as an invitee. The appeals court concluded that the condition of the roadway did not constitute an unexpected or unusual danger.

Pleadings: Chuck Carlson, Individually and D/B/A Whitecapp Marine v. City of Eureka, No. 10-05-00263-CV (Tex. App. –Waco, August 30, 2006). Carlson appealed a default judgment of the trial court granting the City of Eureka a permanent injunction and sanctions against Carlson for operating Whitecapp Marine in violation of several municipal ordinances. Carlson contended that: (1) the court abused its discretion by striking his answer and rendering a default judgment without giving him an opportunity to amend his answer; (2) the city offered no evidence at trial to support a judgment for damages in the amount of $1,000 per day for violation of the ordinances; and (3) the court erred by rendering a judgment nunc pro tunc awarding these damages because the court’s plenary power had expired and the omission of this damage award in the original judgment was not a clerical error. The appeals court held that, because an answer had been filed, the trial court erred by striking the answer and rendering a default judgment without giving Carlson an opportunity to amend. The judgment was reversed and remanded.

Governmental Immunity: Charles D. Cronen v. John R. Ray and the City of Houston, No.14-05-00788-CV, No. 14-05-00789-CV (Tex App. – Houston [14th Dist.], September 5, 2006). This is a consolidated appeal from two nearly identical lawsuits brought by Charles Cronen. Cronen was arrested for blocking a public passageway and for failing to discontinue panhandling in violation of Section 552.007 of the Texas Transportation Code. In both lawsuits, Cronen sought damages for false arrest, false imprisonment, and negligent training of police officers and detention center staff, which allegedly led to his false arrest and false imprisonment. The trial court granted Ray and the City of Houston’s Plea to the Jurisdiction and Motion for Summary Judgment, dismissing Cronen’s causes of action. The appeals court affirmed the trial court’s judgment overruling all of Cronen’s issues since all his actions were barred by governmental immunity.

Governmental Immunity: City of Pasadena v. James Thomas, No. 01-05-00333-CV (Tex. App. – Houston [1st Dist.], August 31, 2006). Thomas was injured while performing community service in lieu of paying a municipal court fine. He argued that the city was negligent in: (1) failing to furnish him with protective gloves, and (2) furnishing him with a machete that had no guard on the handle. The trial court denied the city’s plea to the jurisdiction. The appeals court reversed the decision of the trial court, holding that Thomas’s pleadings did not allege a claim in negligence for which governmental immunity is waived.

Bidding: Oscar Renda Contracting, Inc. v. Lubbock, Texas, No. 05-10836 (United States Court of Appeals for the Fifth Circuit, August 31, 2006). The Fifth Circuit framed the issue in this case as “whether the First Amendment protects a contractor whose bid has been rejected by a city in retaliation for the contractor’s exercise of freedom of speech where the contractor had no pre-existing relationship with the city.” The appellate court noted the U.S. Supreme Court expressly reserved this question in Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996); relying on the analysis in Umbehr, the Fifth Circuit determined the lack of a prior relationship did not preclude the Oscar Renda Contracting (“ORC”)’s claim. The court looked at three issues specifically: (1) what is the relevant community; (2) did the underlying “speech” in this matter rise to the level of a “public concern;” and (3) must there be a prior relationship before a retaliation claim can be asserted? It held, respectively, the speech and retaliation need not occur in the same physical community; a suit alleging First Amendment retaliation, the existence and facts of which are pled in the subsequent litigation are a matter of “public concern;” and there need not be a pre-existing relationship to allow the contractor to challenge the denial of the contract as retaliation for engaging in protected First Amendment activity. The court’s decision is in conflict with McClintock v. Eichelberger, 169 F.3d 812 (1999). Note: This summary was provided by Lani L. Williams, Local Government Lawyer's Roundtable, Lani@lgl-roundtable.com, (262) 966-7438.

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 - 449: Concludes that premium payments for health insurance and car allowances provided to city officials are “compensation,” and that because the attorney general does not construe city charters, the issue of whether such compensation may be provided to the mayor and city commissioners of Brownsville is within the discretion of that city’s officials.

Special Opinion Request Note: Attorney general opinion request RQ-0526-GA asks whether a city, by passing an ordinance, may prohibit a registered sex offender from living in certain locations within the city. If your city has adopted such an ordinance, and is interested in filing comments, the deadline is October 12, 2006.

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.

Cities Competing with Private Business: Whether a municipality may operate a commercial compost/mulch business that sells its products outside municipal boundaries, RQ-0508-GA, Texas attorney general’s office. TML and TCAA argued that a city is not prohibited from selling mulch in competition with private businesses.

Tax Abatements: Circumstances under which a county may opt out of an agreement made under chapter 312, Tax Code, the Property Redevelopment and Tax Abatement Act, RQ-0514-GA, Texas attorney general’s office. TML argued that economic development grant agreements may be tied to property taxes collected from a business prospect without complying with the provisions of the property tax abatement statute, Chapter 312 of the Texas Tax Code.

Collective Bargaining: Whether a municipality violates Section 617.002, Government Code, by reorganizing and meeting with a labor organization as the sole representative of a designated group of employees, RQ-0520-GA, Texas attorney general’s office. TML argued that a city is prohibited from entering into a collective bargaining agreement by the Texas Government Code, and that specific legislation is required to authorize such an agreement.

Impact Fees Imposed on School Districts: Whether section 11.168, Education Code, prohibits a municipality from imposing impact fees on a school district to help fund additional infrastructure made necessary by proposed new school district facilities, RQ-0506 Texas attorney general’s office. TML argued that the provisions of H.B. 1826 (2005) do not prohibit a city from assessing impact fees against a school district.

Whistleblower Act: Montgomery County v. Park, No. 05-1023 in the Texas Supreme Court. Amici argued that simply removing unpaid duties from an employee does not constitute an actionable, adverse personnel action under the Texas Whistleblower Act. The Court denied the county’s petition for review in August of 2006, and this brief, filed September 7, 2006, is in support of the county’s motion for rehearing.

Annexation: Karen Hall v. City of Bryan, No. 10-05-00417-CV in the Waco Court of Appeals. Amici argued that the only means to challenge the contents of an annexation service plan is through a quo warranto proceeding brought on behalf of the state. In addition, Amici argued that, so long as a city provides services in accordance with the terms of its annexation service plan, disannexation is an improper remedy. The brief was filed on September 5, 2006, and oral argument is set for September 20, 2006.

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
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