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.

Special thanks to this year’s sponsor:

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 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.

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

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

Tort: City of Dallas v. Forrest Furgason, et al., No. 05-06-00875-CV (Tex. App.—Dallas Sept. 18, 2007). The plaintiffs in this case sued the city for injuries allegedly caused by the city’s use of the mosquito repellent “Scourge.” The court of appeals held that there was legally insufficient evidence that Scourge caused the plaintiffs’ injuries. The court of appeals also affirmed the trial court’s holding that the plaintiffs’ expert witness was unreliable because the expert witness had not conducted sufficient Scourge testing, and had not determined the concentration of Scourge that may have affected the plaintiffs.

Civil Service: City of Round Rock, et al. v. Mark Whiteaker, No. 03-07-00009-CV (Tex. App.—Austin Sept. 14, 2007). Firefighter Mark Whiteaker alleged that the City of Round Rock violated Chapter 143 of the Local Government Code when the city bypassed him on its promotion eligibility list and promoted another fire fighter. The trial court denied the city’s plea to the jurisdiction and held that whether Whiteaker had standing or not was intertwined with the merits of the case. The court of appeals affirmed the trial court’s denial of the plea to the jurisdiction, but held that Whiteaker’s claim for back pay and back benefits was barred by governmental immunity because the legislature has not waived governmental immunity in Chapter 143.

Civil Service: Ruben Mendoila, et al. v. City of Laredo, No. 04-07-00279-CV (Tex. App.—San Antonio Sept. 12, 2007). Ruben Mendoila and other firefighters sued the city for back pay and retroactive promotions under the Civil Service Act. The position of fire captain was filled with a retroactive promotion, causing a “domino effect” of vacant positions that should have been filled according to the city’s promotion eligibility list and schedule. Mendoila and others argued that they should have been promoted earlier. The trial court granted the city’s motion for summary judgment and dismissed the firefighters’ claims. The court of appeals held that the firefighters were not appropriately appointed to their positions under the city’s promotion eligibility list and schedule and so might be eligible for retroactive promotions and back pay. The court of appeals remanded the case back to the trial court for a determination of whether the city was protected by governmental immunity on the issue of back pay.

Civil Rights: Delores A. Zarnow v. City of Wichita Falls, et al., No. 06-10693 (5th Cir. Sept. 13, 2007). Dr. Zarnow kept explosives, weapons, and ammunition at his clinic and home. While on vacation, Dr. Zarnow’s cache of weaponry at his clinic was discovered and seized by the police. The police also searched his home and seized weaponry there. Weapons charges were filed, but later dropped. Dr. Zarnow sued the city and its police officers for civil rights violations and sought money damages for his unreturned weaponry and explosives. The trial court denied the city’s motion for summary judgment and denied the police officers’ qualified immunity. The court of appeals held it did not have jurisdiction over a denial of summary judgment. The court of appeals then reviewed whether the officers had qualified immunity in their role in securing the warrants to search Dr. Zarnow’s house. The court held that the search of Dr. Zarnow’s house after finding explosives at his office was reasonable, partially based on the proximity of the clinic to the previously-bombed federal building in Oklahoma City, which is only “a short two-hour drive from Wichita Falls.” The court held that the trial court erred in not granting the police officers qualified immunity.

Hotel Occupancy Tax: City of Orange v. Hotels.com, LP, et al., Civil Action No. 1:06-CV-413 (E.D. Tex. Sept. 21, 2007). The City of Orange sued Hotels.com and other online hotel room companies because the online companies were not remitting the hotel occupancy tax based on the amount the actual occupant paid to the online company. These companies only paid the tax based on the amount the online company originally paid to the hotels for the block of rooms it later sold to occupants online. The district court held that the amount of tax paid by the online companies was appropriate under the city’s ordinance, because the wording of the City of Orange’s ordinance only required tax based on the amount of consideration paid to the hotel or motel. The ordinance’s payment requirements did not include the amount paid by occupants to the online companies since the online companies were not hotels or motels.

Vested Rights: City of Helotes v. Miller, No. 04-06-00564-CV (Tex. App.—San Antonio Oct. 3, 2007). Miller sued the city after the city tried to annex Miller’s property (on which Wal-Mart was planning to build a store) and tried to pass development controls on the property. Wal-Mart then backed out of the development project and out of its contract with Miller. Miller argued that he had vested rights in his development project and therefore the city’s development controls could not affect his project. The city argued that, because Wal-Mart backed out, there was no longer a development project, and the case was moot. The trial court denied the city’s plea to the jurisdiction. The court of appeals held that Miller had produced some evidence of a development project and therefore his claim of vested rights should be determined by the trial court.

Employment: City of Weslaco v. Baudelio Castillo, et al., No. 13-06-023-CV (Tex. App.—Corpus Christi-Edinburg September 27, 2007). The City of Weslaco appealed the confirmation of an arbitration award in favor of Mr. Castillo and other former city police officers. The city argued that the trial court erred in: (1) confirming the award because the arbitration panel exceeded its authority under the terms of a collective bargaining agreement (CBA) between the city and its police officers, and (2) awarding attorney’s fees to the former city employees. The original arbitration concerned alleged acts of discrimination, harassment, official oppression, and retaliation against the employees by the police chief and other police department personnel. The arbitration panel held in favor of the employees and awarded monetary damages. The city subsequently filed a suit seeking declaratory judgment, arguing that the arbitration panel had exceeded its authority under the CBA. The employees filed a counter-claim, seeking confirmation of the award, and later filed a motion for summary judgment, claiming that the city as the losing party had the burden to produce a complete record of the arbitration. The trial court granted the employee’s motion for summary judgment and affirmed the arbitration award. The order did not address the city’s claims, attorney’s fees or interest, nor did it contain a “Mother Hubbard” clause stating that “all relief not expressly granted is denied.” When the court subsequently awarded the employees’ attorney’s fees and interest, the city filed the current appeal. The court held that, among other things, that because the city could not produce an adequate record, the presumption must be that there was adequate evidence to support the panel’s ruling.

Opinion No. GA-0573 (Texas Municipal Police Association): concludes that a policy under which the Texas Municipal Police Association (TMLPA) reduces the tuition for required continuing education charged to Association members is rationally related to a legitimate state purpose. The TMPA therefore may charge its members a reduced tuition without contravening constitutional equal protection guarantees, and the Texas Commission on Law Enforcement Officer Standards and Education need not require the TMPA to revise its policy.

Opinion No. GA-0576 (County Maintenance of City Roads): concludes that, if a county determines that a particular municipal street is a connecting link or an integral part of a county road or state highway, the county may use the proceeds of road bonds issued under Article III, Sections 52(b) and (c) of the Texas Constitution to construct, maintain, or operate the municipal street.

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.

Texas City Attorneys Association
1821 Rutherford Lane, Suite 400
Austin, Texas 78754
www.texascityattorneys.org