Congratulations New TCAA Board Members: (1) Karen Kennard, First Assistant City Attorney, Austin; and (2) Kathryn H. Davis, City Attorney, Killeen. Also, special thanks to Nancy Williams, Senior Assistant City Attorney, Irving, for her outstanding past service on the TCAA Board. For a complete list of board members, please visit www.texascityattorneys.org.

Congratulations Fall 2007 TCAA Municipal Certification Recipient: Nghiem Doan, Assistant City Attorney, City of Pearland. TCAA’s Municipal Certification Program recognizes attorneys who demonstrate advanced knowledge and experience in municipal law. The program includes separate certifications for municipal prosecutors, municipal civil law attorneys, and office certifications. For more information, please visit www.texascityattorneys.org.

2008 Riley Fletcher Basic Municipal Law Seminar to be held in Arlington: The Ninth Annual Riley Fletcher Basic Municipal Law Seminar will be held in Arlington on February 22, 2008. Topics will include: (1) types of city government; (2) open government; (3) economic development; (4) ethics for city attorneys; (5) Tort Claims Act; (6) personnel; (7) municipal court; (8) purchasing; and (9) land use. The seminar is great for new city attorneys or those wanting a refresher in the basics! Registration information will be available shortly, so watch for an e-mail and mailer on this event.

Speakers Needed for TCAA’s 2008 South Padre Conference to be held on June 11-13, 2008: Please submit your ideas by e-mail to shouston@tml.org by December 28, 2007.

2007 Fall Conference in Dallas: The TCAA Fall Conference was held on November 8, 2007, at the Dallas Convention Center, and was a great success! Special thanks to all of the volunteer speakers and to this year’s sponsor: Carls, McDonald & Dalrymple, LLP. Speaker papers are available according to topic on the “Legal” section of www.tml.org.

International Municipal Lawyers Association (IMLA) Stand-Alone CLE Seminars: IMLA is holding its first-ever stand-alone CLE Program entitled Construction Law and Claims for the Municipal Lawyer on January 7-8, 2008, in St. Augustine, Florida. IMLA’s second stand-alone CLE program entitled Code Enforcement for the Municipal Lawyer will be held on January 20-22, 2008, in St. Augustine as well. For information or to register, please visit www.imla.org.

TCAA Adult Business Study Update: Thanks again to those cities that provided financial support for the commissioning of a study of the negative effects of retail-only sexually oriented businesses with no on-premises entertainment (e.g., adult book and video stores). Late last summer, the steering committee authorized consultants to begin research based on proposals submitted to TCAA. Experts in the area of land use planning are in the process of preparing and conducting a survey of real estate appraisers regarding the effect on property values of these businesses. In addition, experts in the area of criminology are investigating the results of other studies, and working with individual cities regarding the effects on crime of these businesses. Results should be available sometime in early 2008.

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

Tort Liability: City of Dallas v. Kenneth Reed, No. 07-0469, on Petition for Review in the Texas Supreme Court. TML and TCAA argued on behalf of the City of Dallas that a slight difference in elevation between lanes on a roadway is not a special defect as a matter of law because it is not a condition that is of the same kind or class as an excavation or roadway obstruction, and because it does not create an unexpected and unusual danger to users of a roadway. The brief was filed on November 20, 2007.

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

Collective Bargaining: City of Beaumont v. International Association of Firefighters, Local Union No. 399, No. 09-06-481-CV (Tex. App. – Beaumont, November 8, 2007). This case arises from the arbitration of a compensation dispute between the City of Beaumont and the International Association of Firefighters Local Union No. 399 conducted pursuant to Chapter 174 of the Local Government Code (Fire and Police Employee Relations Act). The court of appeals set aside the trial court’s judgment and held that: (1) the arbitration panel exceeded its authority when it arbitrated an issue on which the city was not given written notice as required by the parties’ contract; (2) the panel arbitrated an issue that was not in dispute and had been settled previously by collective bargaining; and (3) the panel proceeded to arbitrate while refusing to apply the criteria under which the parties had agreed to arbitration in the first place.

Sovereign Immunity-Contract: City of San Antonio v. Polanco & Co., L.L.C., No. 04-07-00258-CV (Tex. App.—San Antonio October 31, 2007) (mem. op.). The City of San Antonio appealed the trial court’s denial of its plea to the jurisdiction. Polanco and the city had a contract for Polanco to provide food concession services at city golf courses, which Polanco failed to fulfill. When Polanco failed to fulfill its contractual obligations, the city terminated the contract, but retained some of Polanco’s equipment. Polanco sued the city for fraud, breach of contract, inverse condemnation of equipment left on the premises, and claims under the Declaratory Judgment Act. The court of appeals dismissed Polanco’s fraud tort claim because the ownership and operation of a golf course fits within the broad recreational facility definition of the Texas Tort Claims Act as one of the city’s governmental functions. TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(13), (23). The court dismissed the breach of contract claim because Polanco failed to state damages allowed by Chapter 271 of the Local Government Code. The court dismissed the inverse condemnation claim because the city obtained possession of Polanco’s property by virtue of the contract and did not have the requisite intent to take Polanco’s property by eminent domain. Lastly, the court dismissed the declaratory judgment claim because it sought to establish the contract’s validity and was an improper attempt to circumvent the State’s sovereign immunity from suit.

Real Property: City of Alvin v. Sallie Zindle, No. 14-06-01147-CV (Tex. App.—Houston [14th Dist.] October 23, 2007) (mem. op.). The City of Alvin appealed a grant of summary judgment in favor of Zindle. The trial court held that Zindle owned the royalty interest and reverter of a producing oil and gas lease on property that had been foreclosed and sold to the city. The court of appeals reversed the summary judgment and remanded to the trial court, stating that the record did not contain the judgment of foreclosure or the order of sale, which were essential to determining who owned the oil and gas lease.

Civil Service: Mark Anderson v. City of McKinney, No. 05-06-01571-CV (Tex. App.—Dallas October 23, 2007). Firefighters working for the City of McKinney appealed the trial court’s order dismissing their claims under Section 141.033(b) of the Local Government Code. The court of appeals affirmed the trial court’s order barring the firefighters’ claim for back pay. For purposes of governmental immunity, the trial court saw no distinction between a claim for accrued but unpaid vacation time and a claim for accrued but unpaid wages. However, the court of appeals reversed the portions of the order dismissing the claims for declaratory judgment, injunction, and mandamus, and remanded those claims back to the trial court. These claims were not barred because they do not attempt to control the city’s actions other than to enjoin it from acting in a manner that is allegedly unlawful under a state statute.

Sexually Oriented Businesses: Kenneth D. Smartt v. City of Laredo, No. 07-06-0291-CV (Tex. App.—Amarillo, October 23, 2007). Smartt appealed from a permanent injunction enjoining him from operating a sexually oriented business (SOB) in Laredo. Laredo amended a previously-existing ordinance requiring SOB operators to obtain licenses and refrain from operating within 1,000 feet of a residential area. The court of appeals held that the business was not “grandfathered” solely because it was in operation before the land was annexed by Laredo and before the amendment was implemented because zoning ordinances can be used to end nonconforming uses. The court also held that there was no violation of Smartt’s First Amendment rights because the ordinance was content neutral in that it properly regulated the time, place, and manner of the sexually oriented activity. Finally, the court of appeals held that cities are permitted to use injunctions for SOB ordinance enforcement and are not limited to criminally prosecuting the offenders.

Sovereign Immunity-Contract: City of Houston v. Allco, Inc., No. 01-02-00812-CV (Tex. App.—Houston [1st Dist] October 18, 2007). The City of Houston appealed the trial court's judgment in favor of Allco, and the Supreme Court remanded to determine whether city's immunity was statutorily waived. Allco contracted with Houston for sewer work. The contract included a provision that compensated Allco for "extra" work if it gave notice and obtained prior city approval before undertaking the work, or if the city caused extra cost by failing to provide information. The city knew of an unrelated toxic tort lawsuit against an oil company that involved alleged soil contamination in the area that Allco was excavating, but failed to inform it of the litigation. The contractor was served with a temporary restraining order and incurred extra costs for attorney fees, for testing excavated dirt for contamination, and for disposing of the excavated dirt. The trial court ruled that the contractor was entitled to payment from the city for part of these costs in accordance with the extra work provision. The court of appeals held that the city's sovereign immunity was waived under Local Government Code Section 271.152 and that the contractor was entitled to recover amounts due under the contract as provided in Section 271.153(a)(1). Recovery of the contractor's attorney fees was not prohibited by Section 271.159 because they were not incurred in the adjudication of a claim by or against the city.

Open Meetings Act: City of Farmers Branch v. Ramos, No. 05-07-00137-CV (Tex. App.—Dallas, October 12, 2007). Ramos sued the city and council members in their official capacity alleging that the city council adopted two controversial ordinances in violation of the Open Meetings Act because the council improperly discussed the ordinances in closed session. The city argued that the attorney consultation exception and the threat of litigation allowed them to meet in closed session under the Act. However, the court's record did not contain evidence of the threat of litigation, when the threat of litigation was made, or the scope of the possible litigation, on which the city has the burden of proof. Even assuming that the exception applied, the court of appeals held that Ramos’ allegations of the city council’s actions within the executive session suggested that the city council members acted outside the lawful bounds of an executive session and would constitute more than a lawful discussion with their attorney under the Act. Ramos' request for a declaration that the city and council members violated the statute, coupled with the potential remedy involving the certified agenda, established that the issue was not mooted by repeal of the ordinance. The court of appeals held that Ramos' petition sufficiently stated a claim for a notice violation under the Act and affirmed the trial court's order denying the city’s plea to the jurisdiction.

Eminent Domain: Maguire Oil Co. v. City of Houston, No. 14-05-01272-CV (Tex. App.—Houston [1st Dist.] October 11, 2007). Maguire Oil appealed a grant of the city's plea to the jurisdiction in connection to Maguire Oil's action for inverse condemnation. Maguire Oil received a city-approved permit to drill 300 feet west of Lake Houston. After expending $200,000 for building roads, clearing the location, and moving the rig and equipment into place, Houston issued a stop work order and revoked the permit pursuant to Houston, Tex., Code of Ordinances ch. 23, art. IV, § 23-102. The court of appeals rejected the city's argument that Maguire Oil should have proceeded with an appeal to the city council because: (1) the public works director was the relevant administrative decision maker and rendered a final decision; (2) the regulations did not contemplate an appeal from permit denial; and (3) even if an appeal was available, not proceeding with one would have provided the city only with an exhaustion of administrative remedies defense. The court of appeals also rejected the city's claim that Maguire Oil should have sought a writ of mandamus or injunction to force the city to issue the permit. Because the case was ripe for adjudication, the trial court erred in granting the city's plea to the jurisdiction. The court of appeals overruled the motion for rehearing, withdrew the court's previous opinion, and substituted this opinion.

Sovereign Immunity-Contract: H&H Sand and Gravel, Inc. v. City of Corpus Christi, No. 13-006-00677-CV (Tex. App.—Corpus Christi November 8, 2007) (mem. op.). H & H Sand appealed from a grant of the city’s plea to the jurisdiction. The city contracted for sand with Suntide Materials, which then subcontracted with H&H Sand. When Suntide fell behind on its payment to H&H Sand, the two companies executed an assignment, which was delivered to the city, that the city would pay the two companies jointly. However, the city only paid Suntide. H&H Sand pleaded claims of oral and contractual novation. The court of appeals held that H&H Sand was not a "pass-through claimant" entitled to a limited waiver of governmental immunity because it was not a contractor bringing claims on behalf of a subcontractor. The court also rejected H&H Sand's allegation that it became a party to the contract between the city and Suntide on its modification of the contract. The city did not enter into a contract that allowed unilateral modification by third parties and did not properly execute the purported assignment. The court of appeals affirmed the judgment dismissing H&H Sand's claims for want of jurisdiction.

Civil Rights: Teal v. City of Houston, No. H-06-3726 (S.D. Tex. October 31, 2007). Teal appealed from a grant of summary judgment in favor of the City of Houston. Teal filed suit against the City of Houston under 42 U.S.C. § 1983 for failure to train and properly supervise Officer Archer, who pled guilty to the felony of engaging in inappropriate sexual conduct with a person (Teal) in custody. The court affirmed its previous ruling that there was no genuine issue of material fact as to Teal's claim. Teal must show that the city's policy must have been adopted with "deliberate indifference" to its known or obvious consequences, and that the city must be the "moving force" behind the constitutional violate. The summary judgment evidence demonstrated that the city was neither liable for, nor the cause of, Archer's conduct.

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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