TCAA NEWS
(Volume 3, Issue 9 – October 2008)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

The TCAA Fall Conference will be held in conjunction with the TML Annual Conference on October 30, 2008, at the Henry B. Gonzalez Convention Center in San Antonio. Special thanks to our sponsor:

Nichols, Jackson, Dillard, Hager & Smith, LLP

The City of San Antonio and Denton, Navarro, Rocha & Bernal, P.C., will host a pre-conference reception on the evening of Wednesday, October 29, 2008. The reception will be held from 4:30 – 6:30 p.m. at the Henry B. Gonzalez Convention Center in the Grotto on the River Level (River Level Room 007).

CLICK HERE FOR MORE INFORMATION OR TO REGISTER. (Note: The exact schedule for the TCAA event is available under "Affiliate Programs," and most attorneys who will not be attending the entire TML Annual Conference will want to choose the “one-day registration” option.)

Research Papers of Interest: The Texas State M.P.A. program has received both national and regional recognition for the quality of its student research. This research, most of which deals with Texas state and local government, is now freely available at http://ecommons.txstate.edu/arp/.

In-depth research is available for topics such as downtown planning, greening affordable housing, succession planning, utility records management, home rule charters in Texas, human resource management, economic development, urban sprawl, infrastructure cost benefit analysis, ethics of contracting out, water conservation planning, and geographic information systems in land use policy making.

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

Articles

An Analysis of Texas Home Rule Charters (2008), Charlie Zech, Denton, Navarro, Rocha & Bernal, San Antonio: The purpose of this applied research project is two-fold. The first is a description of the content of current Texas home rule charters. The second is a description of what changes, if any, have occurred in that content since Blodgett’s Texas Home Rule Charters in 1994. The research method is a hybrid approach combining surveys and content analysis in order to determine how local government is structured within Texas home rule charters. Survey questionnaire/coding sheets are sent out to the 340 currently existing home rule cities in Texas which are then used to review their content for a determination of what, if any, changes have occurred in home rule structure since 1994. Overall findings reveal that forms of government remain relatively unchanged since Blodgett’s 1994 survey. However, certain aspects of those forms have changed. Generally, there is a trend towards requiring more unanimity in city council decisions, an increase in term limit requirements, and increased mandatory capital budget requirements. Read more.

Golf Cart Regulation, Laura Mueller, Legal Counsel, Texas Municipal League: Cities are seeing an increase in the use of golf carts on city streets, and many have questioned municipal authority to regulate or prohibit that use. Section 502.001 of the Transportation Code provides that a golf cart is considered a “motor vehicle.” A golf cart must be registered with the Texas Department of Transportation to operate on any street, and any individual operating the golf cart must have a driver’s license under Section 521.021. Read more.

Attorney General Opinion REQUEST of Interest to Cities

Note: The Texas Municipal League (TML) and/or the Texas City Attorneys Association (TCAA) often file comments on attorney general opinion requests. Those are noted under the “TML/TCAA Legal Defense Program” heading in this newsletter. As a service to TCAA members, some of those opinion requests will be highlighted in this section so that interested cities are aware of the request. The attorney general’s office provides a free e-mail notification of opinion requests at www.oag.state.tx.us.

Opinion Request No. RQ-0745-GA (Annexation – 100 Tracts Exemption): asks about the ability of a city to annex property under the “100 tracts exemption” to the annexation plan requirement. The county attorney has taken the position that an area is exempt only if it has a home on every tract of land. That interpretation is inconsistent with the plain language of the statute and would preclude a city from annexing even vacant land outside of a three-year annexation plan. Briefs are due by October 31, 2008. The actual request and accompanying brief are available at http://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2008/pdf/RQ0745GA.pdf.

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

Sovereign Immunity: Lowell v. City of Baytown, No. 07-1011, in the Supreme Court of Texas. Amici argued that 2007 legislation overturning governmental immunity for back pay claims (codified in Local Government Code Section 180.006) was intended to apply prospectively only and has no effect on cases filed prior to the effective date of the law (June 15, 2007).

Annexation: City of Ovilla v. Triumph Development Company, No. 14-08-00593-CV, in the Fourteenth Court of Appeals. TML and TCAA argued that: (1) a city’s annexation is not invalid merely because it is prohibited by law from providing water and wastewater service to an annexed area; and (2) a person who has been annexed has no standing to directly challenge the contents of a city’s service plan.

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.

Federal Telecommunications Act: Sprint Telephony PCS, L.P. v. County of San Diego, Nos. 05-56076, 05-56435 (U.S. Cir.—Sept. 11, 2008). In 2003, the County of San Diego (county) enacted an ordinance imposing restrictions and permit requirements on the construction and location of wireless telecommunications facilities. The ordinance contained aesthetic requirements, limited where wireless facilities can be placed, and limited the number of facilities that can be placed at individual sites. Sprint Telephony PCS (Sprint) alleged that, on its face, the ordinance prohibited or had the effect of prohibiting the provision of wireless telecommunications services in violation of the Federal Telecommunications Act of 1996 (Act), specifically 47 U.S.C. 253(a) or 42 U.S.C. 332(c)(7). The district court permanently enjoined the county from enforcing the ordinance, and a three-judge panel of the court of appeals affirmed. Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700 (9th Cir. 2007).

The Act precludes state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the provision of telecommunications services, including wireless services. 47 U.S.C. Section 253(a) of the Act states that “No state or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Section 332(c)(7) also states that a local regulation “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”

In 2001, the Ninth Circuit interpreted Section 253(a) of the Act in City of Auburn v. Qwest Corp., 260 F.3d 1160. The court interpreted the phrase “may prohibit or have the effect of prohibiting” broadly, holding that city procedural requirements, fees, authorized penalties, and the ability of cities to grant, deny, or revoke telecommunications franchises violated the Act. The Court reviewed that case and abandoned its broad interpretation in favor of a 2007 Eighth Circuit case, which held that – to show that a regulation prohibited the provision of services under the Act – a provider “must show actual or effective prohibition, rather than the mere possibility of prohibition.” Level 3 Commc’ns, L.L.C. v. City of St. Louis, 477 F.3d 528 (8th Cir. 2007). The Ninth Circuit noted that its reasoning is consistent with rulings from the Federal Communications Commission where the commission has stated that a regulation would have to actually prohibit or effectively prohibit the provision of services to violate the Act.

Because the county’s ordinance was not an outright ban on wireless facilities, the court held that it did not effectively prohibit the provision of wireless facilities under the Act. Therefore, the ordinance did not violate the Act and is valid. The court also held that § 1983 claims cannot be brought for violations of the Telecommunications Act.

Sovereign Immunity: Singleton v. Casteel, No. 14-07-00932-CV (Tex. App.—Houston [14th Dist.] Sept. 25, 2008). On January 30, 2006, two League City police officers investigated an alleged altercation between Kenneth Casteel and his common-law spouse. As a result of this investigation, Casteel filed a lawsuit against the City of League City, the League City Police Department, and the two officers involved in the investigation, alleging: (1) malicious prosecution by the city, the department, and the officers; (2) negligent hiring and negligent formation of policy by the city and department; and (3) civil conspiracy and intentional infliction of emotional distress by the officers.

The city, the department, and the officers filed an answer that included a motion to dismiss the claims against the officers pursuant to Section 101.106 of the Civil Practices and Remedies Code. Section 101.106(e) provides that “[i]f a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (Vernon 2005). The trial court denied the motion to dismiss Casteel’s claims against the officers.

On appeal, the officers argued that because claims against both the officers and the city were “filed under” the Texas Tort Claims Act (Act), the officers should have been dismissed from the suit upon the city’s filing of the motion to dismiss. Casteel claimed that, unlike his claims against the city and department, his tort claims against the officers were not “filed under” the Act because sovereign immunity is not waived for intentional torts. The issue on appeal was whether or not Casteel’s claim of intentional infliction of emotional distress against the officers was brought under the Act.

Relying on the recent Texas Supreme Court decision in Mission Consolidated Independent School District v. Garcia, the court dispelled Casteel’s argument that his tort claims against the officers were not “filed under” the Act. In Garcia, the court held that “because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” 253 S.W.3d 653, 658-59 (Tex. 2008). Using the Garcia opinion as precedent, the court of appeals held that all tort theories, including intentional torts, are filed under the Act for the purposes of section 101.106 of the Civil Practices and Remedies Code. The court of appeals reversed the judgment of the trial court and dismissed Casteel’s claims against the officers.

Regulatory Takings: City of El Paso v. Maddox, No. 08-06-00332-CV (Tex. App.—El Paso Sept. 11, 2008). In the 1970s, Maddox acquired property next to property on which Sunland Park Mall was later built. His property was landlocked, with no access to any public street. After learning that his property would not have street access, Maddox unsuccessfully attempted to negotiate with the mall owners for street access. He then asked the city to enforce a 1974 ordinance and city policy that he believed should have forced the mall owner to provide him street access when the mall property was platted. The city planned to do so, but in 1992 amended the ordinance to eliminate the requirement for public streets in a shopping center so long as access between lots was provided with reciprocal easements.

Maddox filed suit against the city, claiming that the 1992 amendment and its retroactive application to the mall property worked as a regulatory taking because his property had been rendered unsaleable. The city filed a plea to the jurisdiction, claiming that Maddox’s case was unripe because he never filed any type of development application for the property for the city to act on, nor did he seek any type of variance. Maddox claimed that any such attempts would have been futile. The trial court denied the plea, and the city filed an interlocutory appeal.

A compensable regulatory taking occurs when a city imposes restrictions that either deny a property owner all economically viable use of his property or unreasonably interfere with the owner’s right to use and enjoy the property. For a claim to be ripe, there must be a final decision regarding the application of the regulation to the property at issue. A final decision usually requires a rejected development application and the denial of a variance from the regulation. This case is unique because it involved an indirect application of a regulation to the property. In other words, Maddox claimed a taking based on the city’s refusal to enforce an ordinance against abutting property.

Concluding that the city’s actions involved a regulatory taking, the court nonetheless held that no final action had been taken with respect to Maddox’s property. The court of appeals reversed the trial court’s order and rendered judgment in favor of the city.

Sovereign Immunity-Tort: City of San Antonio v. Canales, No. 04-08-00213-CV (Tex. App.—San Antonio Oct. 1, 2008) (mem. op.). The city’s sovereign immunity may have been waived when it demolished a house because the city did not follow its own set procedures in demolishing the structure.

Sovereign Immunity-Tort: Williams v. City of Littlefield, No. 07-07-0435-CV (Tex. App.—Amarillo Sept. 26, 2008). The city’s no-evidence summary judgment was properly granted because the pro se plaintiff did not provide essential expert testimony to show her disease was caused by a sewer backup.

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-0669 (Open Meetings Notice): concludes that the notice at issue does not sufficiently notify a reader, as a member of the interested public, of the subjects to be addressed at a meeting subject to the Open Meetings Act, Government Code chapter 551. Section 551.042 of the Act authorizes a limited response to inquiries of a member of the public or of the governmental body about a subject not included in the posted notice. To the extent that a subject is addressed by a city manager or a member of the governing body in the manner and under the circumstances authorized under Section 551.042, it does not have to be included in a posted meeting notice.

Opinion No. GA-0699 (Constitutionality of Special Laws – Civil Service): concludes that, though Article III, Section 56, of the Texas Constitution prohibits the legislature from passing any local or special law regulating the affairs of cities, the legislature nonetheless has broad powers to make classifications for legislative purposes and to enact laws pertaining to the classification. The primary consideration under Article III, Section 56, is whether there is a reasonable basis for the classification made by the law related to the purpose of the law. Sections 143.088 and 143.1041, which pertain to civil service exam requirements and limitations on civil service retirement, respectively, apply only to cities with a population of 1.5 million or more, currently the City of Houston. Such a population classification is not unconstitutional where there is a basis for the population bracket that is reasonably related to the object of the statute. Given the presumption of constitutionality of statutes as well as the presumption that a state of facts exists to justify a legislative classification, we cannot conclude as a matter of law that these two provisions are local or special laws prohibited by Article III, Section 56.

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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