TCAA NEWS
(Volume 4, Issue 8 – September 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

TCAA to Fill Board Position on October 22, 2009: 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 9, 2009. 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) Jonathan Graham, City Attorney, Temple; (2) Karen Brophy, Senior Assistant City Attorney, Irving; and (3) Art Pertile, Attorney, Olson and Olson.

Summer Conference Video Replay: Miss the South Padre Conference? Here’s your chance to get 10 hours of MCLE credit for just $50! The City of Grand Prairie is hosting a video replay of the conference on October 8-9, 2009, in the Uptown theatre. For more information or to register online, please go to http://www.tml.org/ed_tcaa_virtual3.asp.

Save the Date! The TCAA Fall Seminar in conjunction with the TML Annual Conference is scheduled for October 22, 2009, in Fort Worth. Special thanks to our fall sponsor:

Taylor, Olson, Adkins, Sralla, and Elam, L.L.P.

A link to registration and hotel information is available on the front page of www.texascityattorneys.org.

ABA Section of State and Local Government Law Coming to Austin: The American Bar Association (ABA) Section of State and Local Government Law will hold its fall meeting at the Stephen F. Austin Intercontinental Hotel in Austin from September 30–October 4, 2009. For more information, please go to:

http://new.abanet.org/calendar/state-and-local-government-law-fall-council-meeting/Pages/default.aspx.

Please contact the section’s ABA staff director Ms. Tamara Askew at 312-988-5121, or section vice chair Ed Voss at 214-747-6100, with questions.

IMLA Events: In addition to the local CLE programs provided by TCAA, the International Municipal Lawyers Association provides outstanding programs in both live and teleconference/webinar format. For more information, please visit www.imla.org, and click on events. This month’s featured conference is Voting Rights Litigation: Equal Access in a Post-Racial Nation, December 10, 2009, Columbia, SC.

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

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

Avinash Rangra and Anna Monclova v. Frank Brown and Greg Abbott, No. 06-51587 (5th Cir. 2009). This brief was a continuation of the Alpine Open Meetings Act case in support of the Rangra’s brief for rehearing en banc. TML and TCAA, among others, argued that strict scrutiny is the appropriate standard of review for the criminal provisions of the Open Meetings Act because of the free speech implications of possibly penalizing volunteer elected and appointed officials with criminal prosecution for merely sharing or exchanging information outside of a meeting. The threat of jail time as a punishment for speaking out about matters of public concern is far from the least restrictive means or promoting the public’s interest in open government. On September 10, 2009, the Fifth Circuit dismissed the case as moot with Judge Dennis dissenting emphatically.

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.

Civil Service: City of Pasadena v. Richard Smith, No. 06-0948 (Tex. Aug. 28, 2009). City of Pasadena Police Chief Massey suspended officer Richard Smith indefinitely. Smith appealed his suspension to an independent, third-party examiner. The chief did not appear at the hearing before the hearing examiner, but the city was ready to prove the case against Smith with other evidence. Smith argued that the chief’s absence was a reason to reinstate him. The hearing examiner agreed and reinstated Smith without any evidence being presented. The written decision gave as the sole ground for the ruling that the chief did not appear at the hearing pursuant to Section 143.1015 of the Local Government Code. The city appealed the hearing examiner’s decision to the district court and Smith filed a plea to the jurisdiction, arguing that the city’s petition was untimely. The trial court agreed with Smith and sustained the plea. After the city’s appeal, the court of appeals held that the district court had no jurisdiction over the case under Section 143.057 of the Local Government Code. The city appealed, and the Supreme Court of Texas granted the petition for review.

While Section 143.1015 does envision the department head being at a hearing, it applies only to the City of Houston. TEX. LOC. GOV’T CODE § 143.1015. Local Government Code Section 143.057, which applies to all cities, states: “[a] district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.” A city may appeal a hearing examiner’s ruling pursuant to this statute. See City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006). A city must be able to receive meaningful review of the hearing examiner’s actions. Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex. 1997).

The city argued that the hearing examiner exceeded his jurisdiction within the meaning of Section 143.057. The Court held that the Act must bind a hearing examiner to:

definite standards for reaching decisions [and if they are not bound by some standards it] gives them broad latitude in determining not only factual disputes but applicable law, they become not merely independent arbiters but policy makers, which is a legislative function.

2009 WL 2667599 at *3. Not requiring some standards leads to delegation of legislative functions concerns. Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998). If a statute is open to multiple interpretations, it must be interpreted in a manner that renders it constitutional. City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006). In this case, the statute must be read as allowing for meaningful review of a hearing examiner’s decision under applicable law, including the requirement that the civil service commission only consider evidence submitted at a hearing. TEX. LOC. GOV’T CODE §A143.010.

The Court held that the hearing examiner exceeded his authority by not hearing the city’s evidence and ruling solely on the fact that the chief was not present at the hearing (a ruling based on a statute that did not apply to the city). The Court held that: “it clearly exceeds a hearing examiner’s jurisdiction to refuse to hear evidence before deciding that a police officer was improperly disciplined. . . .” 2009 WL 2667599 at *4. The test for determining whether a hearing examiner exceeds his jurisdiction is when: (1) his acts are not authorized by the Civil Service Act; (2) his acts are contrary to the Civil Service Act; or (3) when his acts “invade the policy-setting realm protected by the nondelegation doctrine.” Id. The Court also held that the city’s cause of action was timely, reversing the judgment of the court of appeals and remanding the case to the district court.

Building Permits: William L. Lindig and Peggy L. Lindig v. City of Johnson City, et al, No. 03-08-00574-CV (Tex. App.—Austin Aug. 11, 2009). The Lindigs originally received permission from the city to do construction work on their residence and began construction while their building permit application was being processed. When the application was processed, the city informed the Lindigs that the building permit fee would be $1,000. The Lindigs refused to pay and the city issued a stop work order on the construction. The city also filed suit under Texas Local Government Code Section 54.012 against the Lindigs to restrain them from further construction, and under Section 54.017 seeking civil penalties from the Lindigs’ violation of the stop-work order, arguing that the Lindigs had not ceased work in compliance with city ordinance.

The Lindigs responded that the city could not enforce the building permit ordinance against them under the priniciples of estoppel and waiver and that the city had waived enforcement of the building permit by failing to enforce it against other residents with similar violations. The Lindigs also counterclaimed against the city alleging (among other issues) that: (1) the building fee permit ordinance is invalid and unconstitutional and building permit fees must be refunded to them and everyone else who had paid them; (2) the city’s stop-work order was illegal, void, and unenforceable; and (3) the city owed the Lindigs damages for an unlawful taking of their property. The Lindigs based their allegations on evidence from the building permit official that the city does not have a building permit fee schedule. In the trial court, all of the Lindigs’ claims were dismissed.

At the appeals court, the city argued that the Lindigs did not have standing to dispute the validity of the building code under the declaratory judgment act since they did not serve the attorney general. The Texas declaratory judgment act provides that a person whose rights, status, or other legal relations are affected by a statute may have determined any question of construction or validity arising under the statute and may obtain a declaration of rights, status, or other legal relations. TEX. CIV. PRAC. & REM.CODE § 37.004(a). However, an action for declaratory judgment cannot extend a court’s jurisdiction by itself. Tex. Natural Res. Conservation Comm’n v. IT- Davy, 74 S.W.3d 849, 855 (Tex. 2002). The declaratory judgment act also provides that in challenges to city ordinances, the city and the attorney general must be served and given a chance to be heard. TEX. CIV. PRAC. & REM.CODE §A37.006(b). Failure to serve either party deprives the court of jurisdiction. See Commerce Indep. Sch. Dist. v. Hampton, 577 S.W.2d 740, 741 (Tex. Civ. App.—Eastland 1979, no writ); Comm’rs Court v. Peoples Nat'l Util. Co., 538 S.W.2d 228, 229 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.). Because the Lindigs did not serve the attorney general with their suit, the court held that they do not have standing in their challenge to the validity of the ordinance.

Next, the city argued that the Lindigs did not have standing to argue that all of the residential building permit fees should be paid back to all of the other residents in the city who had ever paid them. Unless standing is conferred by statute, a person seeking to enjoin the actions of a governmental body must allege and show how he has been damaged or injured other than as a member of the general public. Scott v. Bd. of Adjustment, 405 S.W.2d 55, 56 (Tex. 1966); Walker v. City of Georgetown, 86 S.W.3d 249, 253 (Tex. App.—Austin 2002, pet. denied). In this case, the Lindigs do not have standing because they have not argued that the city’s practice of charging these fees to other citizens has resulted in any injury to them personally.

As to the fee charged to the Lindigs, the city argued they did not have standing to dispute the charge since they did not pay it. In many cases, plaintiffs are required to pay the tax or fee under protest before bringing suit to challenge its validity, however such procedures are mandatory only where expressly required by statute. See Dallas County Cmty. College Dist. v. Bolton, 185 S.W.3d 868, 879 (Tex. 2005) (citing TEX. TAX CODE §§ 31.115; 112.051; 403.202). In this case, the Lindigs do have standing to dispute the fee since the city did not show any statute that would require the Lindigs to pay a building permit fee before they can dispute it.

The city also argued that the Lindigs did not have standing to dispute the building fee ordinance or fee at issue because they did not exhaust their administrative remedies under the city’s ordinances. Section 211.011 of the Local Government Code permits “a person aggrieved by a decision of the board [of adjustment]” to “present to a district court, county court, or county court at law a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality.” TEX. LOC. GOV'T CODE §A211.011(a)(1). This is the procedure that the legislature has provided for appealing a board of adjustment’s action. City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 249 (Tex. App.—San Antonio 2006, pet. denied). Section 211.011 is the administrative remedy provided for in the Local Government Code and must be exhausted before a court has jurisdiction. Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex.App.—Texarkana 2008, no pet.). However, in some cases, a jurisdictional defect created by a failure to exhaust administrative remedies may be cured rather than require dismissal for lack of subject-matter jurisdiction. Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 565 (Tex. App.—Austin 2008, pet. filed). In this case, the Lindigs were able to cure their lack of appeal to the board of adjustment, the board of adjustment made a finding, and the court held that this finding was final. Therefore, the Lindigs did have standing to bring their claims.

The Lindigs’ valid claims were remanded to the trial court.

Takings: Angela Mae Brannan, et al. v. State of Texas, Village of Surfside Beach, et al., No. 01-08-00179-CV (Tex. App.—Houston [1st Dist.] Aug. 28, 2009). This case concerns the Texas Open Beaches Act and several homes that, due to erosion and the natural shift of shorelines, became located within the area of the public beach in the Village of Surfside Beach. TEX. NAT. RES. CODE §§A61.001-.254. Over multiple years, weather events caused the vegetation line of the beach, which demarcates what is public beach and what is private, to change position and cause various homes in the village to allegedly become encroachments on the public beaches. A series of lawsuits and counterclaims followed, with this appeal being the final judgment in the case. The issues involved in this case were: (1) whether the Open Beaches Act created a public beach easement; (2) whether the beach easement should be imposed on the homes that were built on private property but were now encroachments; and (3) whether enforcement of the easement results in a taking of the owners’ property that would require just compensation.

Brief History of the Lawsuits

The first cause of action started after a weather event caused some of the homes in the village to be deemed encroachments on the public beach. The houses were not required to be removed, but the village refused from that point onward to issue permits to allow the owners to repair septic systems and cut off water to some of the affected properties. The trial court held for the state and issued an injunction requiring the removal of the homes, which the homeowners appealed. The General Land Office then suspended for two years the order to remove the homes pursuant to Section 61.0185 of the Open Beaches Act. The second round started when another weather event caused further beach erosion and the state tried again to have the houses removed. Upon appeal to the district court in that case, the court disagreed with the owners’ argument that the action was a regulatory taking because the Open Beaches Act did not create a property right and thus deprive the landowners of the use of their property. Rather, the Act enforced the public’s existing right to the public beach easement. The fact that the homes were not originally built on the beach, but were caught by a “rolling easement” that had moved to include the homes in question, did not exempt the homes from being an illegal encroachment upon a public easement and subject to removal. Most of the homes in question were destroyed by Hurricane Ike, making their cases moot, but four homes remained in the suit.

Open Beaches Act

The Texas Open Beaches Act states that the public should have “free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or . . . the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.” TEX. NAT. RES. CODE § 61.011(a). Under the Act, a public beach is the “area extending from the line of mean low tide to the line of vegetation.” Id. §A61.012. The statute does not create a public beach easement but allows for enforcement of a public beach easement acquired by use of the beach by the public. Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. App.—Austin 1989, writ denied), cert. denied, 493 U.S. 1073 (1990). An easement under the Open Beaches Act can be created by: (1) prescription; (2) dedication; or (3) continuous right. TEX. NAT. RES. CODE § 61.011; Arrington, 767 S.W.2d at 958. Once a public easement to the vegetation line is established under Sections 61.011 and 61.012 through use of the beach, the easement shifts as the line of mean high tide and the vegetation line itself shifts, creating a “rolling easement.” Feinman v. State, 717 S.W.2d 106, 115 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.).

Section 61.018 of the Natural Resources Code requires a county attorney, district attorney, criminal district attorney, or the attorney general to file for removal of encroachments on public beaches.

Easement Created

The four remaining owners argued that no easement was created under the Open Beaches Act. The state’s evidence included statements that the public had been using the beach without asking permission of the landowners for years. The court held that the evidence of public use of the property was sufficient to prove that the public acquired an easement or right of use by implied dedication.

Encroachments

The four remaining owners then argued that their homes preexisted the reach to their homes of the “rolling easement,” and therefore their homes should not be removed. The owners assert that their houses are not “encroachments” under the act because their houses were not built on the easement, but were later in the easement due to weather. The court of appeals interpreted the statute to meet the purpose stated in Section 61.011 of protecting the public’s right to use the public beaches of Texas. Specifically, the court held that the homes were subject to removal under Section 61.018 of the Act because that section requires: “removal or prevention of any improvement, maintenance, obstruction, barrier or other encroachment on a public beach.” Also, a rule adopted by the General Land Office that allows a city to grant repair permits to houses that become encroachments through a rolling easement as long as the houses were originally built on private property, implies that a building is an encroachment even if the building originally was built on private property. See 31 TEX. ADMIN. CODE § 15.11(a). The court further noted that the owners’ interpretation would defeat the purpose of the act.

Takings Claims

The owners claimed that removal of their houses under the act and the village’s refusal to allow access to their properties or work on the utilities resulted in regulatory takings. To prevail on a takings claim, a landowner has to show that the government intentionally took a lawful action that resulted in a taking for a public use. Tex. Const. art. I, § 17; Villarreal v. Harris County, 226 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A regulatory taking occurs when a regulation “denies all economically beneficial or productive use of land.” Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex. 2004). The Open Beaches Act does not create an easement allowing the government to take a person’s land or building, but merely enforces a common law easement that has been established through public use. Arrington, 767 S.W.2d at 958.

The court of appeals held that removal of a building due to the Open Beaches Act is not a taking. See Seaway Co. v. Attorney Gen., 375 S.W.2d 923, 930 (Tex. Civ. App.—Houston 1964, writ ref’d n.r.e.). The court further held, as a matter of first impression, that it does not matter whether the building was built on the public easement or becomes part of the easement later. Either way, a restriction on land imposed by common law cannot be the cause a government taking.

The court held that the government’s enforcement of the public’s existing beach easement was not a taking of property without just compensation. Thus, the city was not liable for damages for denying utility service and repair permits to the properties in question. The court affirmed the judgment of the trial court.

Utilities: AEP Texas North Co.// Cities of Abilene, Ballinger, San Angelo, and Vernon v. Public Utility Commission of Texas, No. 03-05-00644-CV (Tex. App.—Austin Aug. 31, 2009). AEP Texas North Company (TNC), prior to the 1999 deregulation of the electric utilities, operated as a monopoly with rates regulated by the Public Utility Commission of Texas (PUC). The PUC set rates for TNC but employed a “fuel factor” that allowed TNC to charge rates high enough to recover its projected fuel costs. Periodically, the TNC had to reconcile the revenues actually recovered with actual expenses, and then either refund its customers for over-recovery or recoup its losses through additional surcharges. This case results from TNC’s final fuel reconciliation application, in which TNC sought to recover about $23 million, plus $3 million in interest, as its under-recovered fuel balance.

In this appeal, the cities raise four issues concerning the PUC’s final order regarding TNC’s final fuel reconciliation application: (1) the PUC erred in finding that TNC’s natural gas purchases were prudent and reconcilable; (2) the PUC applied the wrong standard of review when examining TNC’s natural gas purchases; (3) the PUC erred by determining that the Oklaunion coal-fired generating unit operated in a manner that incurred reasonable fuel costs; and (4) the PUC allowed ratepayers to subsidize TNC’s unregulated generation company in violation of the Public Utility Regulatory Act (PURA).

The PURA empowers the PUC to regulate electric utilities. See TEX. UTIL. CODE §§ 11.001-66.016. Electric utilities were deregulated in 1999 and split into: (1) generation companies; (2) transmission and distribution companies; and (3) retail electric service providers. Id. §§ 39.001; 39.051. One aspect of electric deregulation was that each utility file a final fuel reconciliation application. Id. § 39.202. The fuel charges that were a part of the fuel reconciliation are required to be prudently incurred with a reasonable rate of return. City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896, 898 (Tex. App.—Austin 1993, writ denied). The PUC then reviews the application, and any determination of the PUC is given deference as the agency responsible for enforcing the statutes and rules. See City of El Paso, 851 S.W.2d at 898; Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984); TEX. GOV’T CODE § 2001.174.

The court found in favor of the PUC on all four issues. The court agreed with the PUC’s finding that TNC’s overall natural gas costs compared favorably with the average cost of other Texas investor-owned utilities, and that the PUC employed an acceptable standard of review in reaching this conclusion. The court also upheld the PUC’s contention that the Oklaunion power plant’s level of performance was reasonable when viewed over the entirety of the reconciliation period. Finally, the court upheld the PUC’s finding that a planned outage of the Oklaunion power plant fell within the maintenance guidelines and did not impose an unreasonable burden on ratepayers.

Additionally, the court overruled TNC’s arguments that the PUC did not follow proper reconciliation methodology in determining its final recovery order. The court accorded considerable deference to the holdings of the PUC and reaffirmed the district court’s judgment upholding the PUC’s final order.

Annexation: City of Celina v. City of Pilot Point and Talley Ranch Management, Ltd., No. 2-08-230-CV (Tex. App.—Fort Worth Aug. 31, 2009). In 2000, the City of Pilot Point annexed a right-of-way on the Denton-Collin County line. Five years later, Pilot Point adopted a resolution to accept into its extraterritorial jurisdiction (ETJ) 3,545 acres of property owned by Talley Ranch Management, Ltd., along the same county line. Pilot Point and Talley Ranch entered into two development agreements regarding this property.

In 2006, the City of Celina brought suit against Pilot Point seeking a declaration that Pilot Point’s 2000 annexation was void because: (1) it extended into Celina’s ETJ; (2) it was a prohibited “strip annexation”; and (3) it annexed land outside Pilot Point’s ETJ. Celina also sought a declaration that the Pilot Point acceptance of the Talley Ranch property into its ETJ was void, and that the development agreements between Pilot Point and Talley Ranch were also void. Talley Ranch intervened at trial, and Pilot Point and Talley Ranch moved for summary judgment on the grounds that Celina’s suit was barred by Local Government Code Section 43.901, which provides that an annexation ordinance is presumed to have been adopted with the consent of all appropriate persons if two years have expired since the ordinance’s adoption. (Note: Texas Local Government Code Section 43.901 was amended in 2001 to provide that “all appropriate persons” does not include cities, but this amendment did not apply retroactively to the annexation at issue.) The trial court granted summary judgment in favor of Pilot Point and Talley Ranch, and Celina appealed.

On appeal, Celina contended that Section 43.901 does not cure any defect other than lack of consent in an annexation, and that the trial court erred in granting summary judgment in favor of Pilot Point and Talley Ranch. Specifically, Celina asserts that a 1996 Supreme Court of Texas decision interpreted Section 43.091 to only bar challenges asserting lack of consent, but not challenges that allege other defects. City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996). Celina argues that because Pilot Point performed a strip annexation and extended its ETJ beyond what was allowable by statute, these acts could still be challenged by Celina past the two-year timeframe. The court of appeals disagreed with Celina’s interpretation of the Murphy decision, and quoted language from that opinion to indicate a broader application of section 43.901: “[t]he [l]egislature has directed that at a certain point in time, defects in an annexation must yield to the interests of stability.” Id. at 482. Because two years had passed since the annexation in question, the court of appeals held that Celina consented to the annexation and was barred from challenging any aspect of the annexation in question.

Celina also argued on appeal that the trial court erred in failing to grant Celina’s motion to dismiss Talley Ranch’s intervention for lack of subject matter jurisdiction. The court of appeals noted that Talley Ranch intervened not to challenge any Celina’s ordinances, but instead as an interested party to Celina’s challenge to Pilot Point’s actions. The court went on to hold that a party may intervene as a matter of right if the party has a justiciable interest in a pending suit. Because Talley Ranch had a justiciable interest in Celina’s suit to void the development agreements between Talley Ranch and Pilot Point, the trial court did not err by denying Celina’s motion to dismiss.

Governmental Immunity-Monetary Damages: Linbeck Construction Corportation v. City of Grand Prairie, No. 05-08-00650-CV (Tex. App.—Dallas Aug. 11, 2009). Linbeck Construction Corporation brought an action against the City of Grand Prairie for judicial foreclosure of a mechanic’s lien on an entertainment facility owned by the city. The court of appeals affirmed the trial court’s holding that a city is protected by governmental immunity in a suit to foreclose a mechanic’s lien on city-owned property because such a suit is really a suit to collect money damages.

Annexation: Five Land, LTD. v. City of Rowlett, No. 05-08-00662-CV (Tex. App—Dallas Aug. 13, 2009). Five Land filed a mandamus action against the City of Rowlett regarding the extension of sewer lines or services to annexed land. The court of appeals held that, under Local Government Code Section 43.056 in effect at the time of the 1998 annexation, Five Land did not have standing because they were a “landowner” and not a “resident” as required by the statute to bring suit.

Governmental Immunity-Monetary Damages: The Town of Double Oak v. Michael McDaniel, No. 2-09-046-CV (Tex. App.—Fort Worth Aug. 20, 2009) (mem. op.). McDaniel sued the Town of Double Oak for an overcharge by the town for building permit fees and a sewer connection fee. The court of appeals held that McDaniel could not bring his suit for retroactive monetary damages because he did not have express legislative permission to sue and since paying the fee to finish the development on time was not sufficient evidence of duress.

Governmental Immunity-Tort: City of Plano v. Sandra Homoky, No. 05-08-01461-CV (Tex. App.—Dallas Aug. 25, 2009). Sandra Homoky sued the City of Plano under the Texas Tort Claims Act after tripping and falling at the city’s golf clubhouse. The court held that the city had governmental immunity under the recreational use statute because Homoky did not have cause of action because the use of the clubhouse was a governmental function, was part of the recreation, and because Homoky did not allege gross negligence.

Takings: City of Carrollton v. David McPhee d/b/a Import Specialist, No. 05-08-01018-CV (Tex. App.—Dallas Aug. 25, 2009). David McPhee sued the city after obtaining a permit for remodeling his business space, beginning work, and then receiving a stop-work order that allegedly caused caused the destruction of his business when he had to stop work. McPhee sued the city for negligent misrepresentation, promissory estoppel, inverse condemnation, and declaratory judgment. The court of appeals held that McPhee’s allegations assert a valid takings claim because public use is not a required component of a regulatory taking and it was a fact issue for the trial court whether McPhee had exhausted his administrative remedies.

Tort: Landon Jones and Loren Jones v. City of Houston, No. 01-08-00905-CV (Tex. App.—Houston [1st Dist.] Aug. 27, 2009). The Jones siblings sued the city for bystander emotional damages after their brother was sucked into a city-owned and maintained culvert and drowned and the siblings were on site when the body was discovered. The court of appeals held that the plaintiffs had failed to allege a bystander cause of action because they did not see their brother drown.

Property Taxes: Tierra Sol Joint Venture and Samuel & Company, Inc. v. City of El Paso, No. 08-07-00162-CV (Tex. App.—El Paso Aug. 28, 2009). The City of El Paso filed suit against the appellants seeking recovery of delinquent property taxes, and the appellants appealed the judgment entered in favor of the city. The court of appeals affirmed the trial court’s judgment because the plaintiffs provided insufficient evidence that the city had not complied with an earlier court order.

Procedure: Rodney J. Green a/k/a Rodney Jack Green v. State of Texas, et al., No. 03-07-00114-CV (Tex. App.—Austin Aug. 31, 2009). The State of Texas and the Cities of Waxahachie and Red Oak filed suit against Green to recover delinquent state and local sales taxes and state motor vehicle rental tax. Green argues that the trial court erred in granting summary judgment because he failed to receive notice of the motion and hearing for summary judgment. The court of appeals affirmed the trial court’s judgment in favor of the state and cities because Green did not provide adequate evidence that he failed to receive notice.

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-0737 (Annexation): Concludes that Section 43.052(h)(1) of the Local Government Code does not require that a residence be located on each tract of the area proposed for annexation. An annexation undertaken pursuant to Section 43.052(h) is not void if the municipality fails to adopt a three-year annexation plan. Whether a service plan requires a landowner to fund a capital improvement in a manner inconsistent with Local Government Code Chapter 395 requires the resolution of questions of fact that cannot be determined in an attorney general opinion.

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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