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.

Utility Relocation: Southwestern Bell Telephone, L.P., d/b/a AT&T Texas v. City of Houston, No. 07-20320, U.S. Court of Appeals for the Fifth Circuit. TCAA and TML filed a brief in support of the City of Houston, arguing that the Federal Telecommunications Act (FTA) does not provide a private right of action for telecommunications companies. TCAA and TML also argued that the FTA does not preempt a city’s ability to require a telecommunications provider to pay to move its infrastructure when the city has a right-of-way construction project, and that any state issues involved in this question should be resolved at the state level. The amicus brief was filed on September 11, 2007, and a decision is pending.

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

Employment: City of Comanche v. Michelle Florence, No. 11-06-00285-CV (Tex. App.—Eastland August 23, 2007). A former city employee claimed that the city’s personnel manual acted as an employment contract that changed the relationship between her and the city from an at-will relationship to a contractual relationship, and that by breaching that contract, the city waived its sovereign immunity. The trial court agreed, and denied the city’s plea to the jurisdiction. The city appealed the trial court’s denial, and the court of appeals held that, because both the city’s personnel manual and application for employment contained language explicitly stating that the documents did not constitute a contract, the trial court wrongfully denied the city’s plea to the jurisdiction.

Official Immunity: Bill Souder, Immediate Past Mayor of the City of Hurst, et al. v. Charlie Cannon, No. 02-06-378-CV (Tex. App.—Fort Worth Sept. 6, 2007). Cannon was a subcontractor on two construction projects for the City of Hurst. The city had a contract with the general contractor, but not with Cannon. The city terminated its contracts with the general contractor. The general contractor went out of business and did not pay Cannon for his work on the city projects. Cannon sued the city, various city officials, and the general contractor. The city filed a plea to the jurisdiction, which the trial court granted, disposing of Cannon’s claims against the city. The city officials filed a motion for summary judgment claiming that they were protected from Cannon’s claims by official immunity, which the trial court denied. The city officials filed an interlocutory appeal on the issue of their official immunity, with the court of appeals. The court of appeals granted summary judgment for the council members and mayor, holding that there was insufficient evidence of bad faith because these officials were discharging their duties as city officials, acting within their discretion, and acting in good faith when they voted to approve and later terminate, the general contractor’s contracts. The court of appeals affirmed the trial court’s denial of summary judgment as to the city manager, assistant city manager, and the project manager for the city, holding that there was sufficient evidence that these officials were exercising occupational discretion, not governmental discretion, when they approved the general contractor’s pay applications, even though they knew that the general contractor was not paying the subcontractors. The court of appeals remanded to the trial court that part of the case dealing with the city manager, assistant city manager, and project manager.

Annexation: Town of Flower Mound v. Sanford, No. 02-07-032-CV (Tex. App.—Fort Worth Aug. 31, 2007). The Sanfords sued the Town of Flower Mound, trying to prevent the town from annexing their property. After the Sanfords filed suit, the town adopted an annexation ordinance annexing the Sanfords’ property. Flower Mound then filed a plea to the jurisdiction, arguing that: (1) Sanford’s lawsuit trying to prevent the annexation was mooted by the enactment of the ordinance; (2) the trial court had no subject matter jurisdiction because the Sanfords’ request to enjoin Flower Mound from annexing the property violated the separation of powers doctrine; and (3) the Sanfords did not have standing because a complaint about Flower Mound’s annexation procedures can only be raised by an action in quo warranto brought on behalf of the state. The trial court denied the town’s plea to the jurisdiction and the town filed an interlocutory appeal in the court of appeals. The court of appeals held that the Sanfords did not have standing to assert their claims, and reversed the trial court’s judgment.

Sovereign Immunity-Contract: SE Ranch Holdings, Ltd. v. City of Del Rio, No. 04-06-00640-CV (Tex. App.—San Antonio Aug. 29, 2007) (mem. op.). SE Ranch appealed the trial court’s order granting the City of Del Rio’s plea to the jurisdiction on grounds of governmental immunity from suit in a breach of contract claim against the city. SE Ranch sought to create a Tax Increment Reinvestment Zone in accordance with Section 311.003 of the Texas Tax Code for a master plan community outside city limits. The city passed an ordinance creating the zone and contracted with SE Ranch, which then purchased the land. Shortly after the agreement, the city repealed the ordinance and SE Ranch sued for breach. SE Ranch argued that: (1) the city, as a home-rule city possessing full power of self-government, had full authority to waive immunity from suit in its charter; (2) the charter contained language that was an express waiver of immunity because it detailed the specific notice of claim process a claimant must follow to subject the City to liability; and (3) that the city’s immunity was waived under Local Government Code Section 271.152. The court of appeals affirmed the trial court’s ruling and held that the city charter only provided a notice or “presentment provision” that detailed how and when claims must be presented to the city, not a clear waiver of immunity. Also, the court of appeals held that the city’s venue and alternative dispute resolution provisions do not waive immunity because they are not clear and unambiguous waivers, and that SE Ranch’s pleading for actual, consequential and incidental damage in excess of the jurisdictional limits was not sufficient to allege allowable damages under Section 271.153, and therefore did not affirmatively demonstrate the trial court’s jurisdiction.

Civil Service: City of DeSoto v. Justin White, No. 05-06-01469-CV (Tex. App.—Dallas Aug. 28, 2007). The City of DeSoto appealed the trial court’s order for summary judgment in favor of White, a former police officer suspended by the city. The city had delivered a letter of indefinite suspension to White, which did not advise White that appealing his suspension to a hearing examiner rather than the Civil Service Commission would limit the issues he would be entitled to raise on appeal. White argued that the failure to comply with the notice requirement deprived the hearing examiner of jurisdiction. The court of appeals held that the city must perform all conditions established by the civil service laws, including the notice provisions, before a hearing examiner obtains jurisdiction, and that the trial court was authorized to award attorney’s fees in an appeal from a ruling from the hearing examiner.

Condemnation: Rowlett/2000, Ltd. v. City of Rowlett, No. 05-06-00520-CV (Tex. App.—Dallas Aug. 20, 2007). Rowlett/2000, a developer, appealed the trial court’s take-nothing judgment in favor of the city. The developer argued that the city’s denial of its rezoning applications was an unconstitutional regulatory taking of property that it originally acquired as pasture land, and its property was made valueless because it could not be developed as a residential subdivision, and had to remain vacant with a value equivalent to that of park land. The court of appeals affirmed the judgment of the trial court and held that, because the property still has some value as park land, camp site, or mobile trailer location, it was not made “valueless.” The property owners retained property rights, such as the right to exclude others and the right to alienate the land; and a jury could reasonably conclude that the property retained some value from these and similar residual uses.

Ad valorem taxes: Excel Auto & Truck Leasing, LLP v. Alief Indep. Sch. Dist., No. 01-04-01185-CV (Tex. App.—Houston [1st Dist.] Aug. 31, 2007). Excel appealed the trial court’s grant of summary judgment in favor of the school district. Excel, which leases cars to its customers, was sued by various taxing units, including the school district, to collect delinquent ad valorem taxes for vehicles allegedly owned by Excel. Excel argued that it did not own the vehicles because its “leases” were actually security agreements that created a security interest in the vehicles its customers owned and because its customers had possession of the automobiles, Excel maintained a lien by possession of the original title. The court of appeals held that Excel’s motor vehicle lease agreements did not create a security interest because they lacked a “hell or high water” clause (i.e., the rental payments the lessee must pay cannot be terminable by the lessee during the term of the lease). The court also held that the early termination clause was nothing more than a liquidated damages provision and that Excel failed to rebut the school district’s prima facie case of ownership.

Public Information Act: City of Dallas v. Greg Abbott, Attorney General of Texas, No. 07-06-0161-CV (Tex. App. - Amarillo, August 13, 2007). The City of Dallas filed a petition in district court seeking a writ of mandamus against the Texas attorney general. The petition requested the court to order the attorney general to declare documents relating to the examination process for firefighters that the city sought to withhold from public disclosure under the Public Information Act as confidential attorney-client communications. The trial court concluded that the city had failed to timely request a decision from the attorney general, and that while the documents were attorney-client privileged documents, the city had failed to present a compelling reason for excepting the documents from public disclosure. The court of appeals affirmed the trial courts ruling, holding that the city did not waive its claim of attorney-client privilege by virtue of untimely requesting an attorney general opinion, but the city failed to provide additional information demonstrating a compelling reason to except documents purporting to contain attorney-client communication.

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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