TCAA NEWS
(Volume 5, Issue 10 – December 2010)
"Your Source for Information About the Texas City Attorneys Association"
News and Updates

Speakers needed for TCAA’s 2011 South Padre Conference to be held on June 8-10, 2011: Please submit your ideas by e-mail to shouston@tml.org by December 31, 2010. Hotel and registration information for the conference will be available early next year.

2011 Riley Fletcher Basic Municipal Law Seminar to be held in Austin: The Twelfth Annual Riley Fletcher Basic Municipal Law Seminar will be held in Austin on February 18, 2011. For more information or to register, please visit www.texascityattorneys.org!

FREE CLE! The 2010 TCAA Summer and Fall Conferences Available Online: TCAA Online Seminars is a FREE SERVICE that allows TCAA members who are city attorneys, assistant city attorneys, or attorneys who regularly practice municipal law to purchase and view a video of past seminars in a single-session format. Viewing of the session, along with the completion of an evaluation and participation in the LisTCAA listserv, allows attorneys to receive participatory CLE credit with the State Bar. To view available seminars, please go to www.tcaaseminars.org.  Use the password “FreeCLE” to gain access to the sessions. 

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

Articles

Assignment of Contract Rights and Waiving Sovereign Immunity. Jeffrey S. Chapman, Ford, Nassen & Baldwin, P.C. The Third Court of Appeals recently issued an opinion that discussed the waiver of sovereign immunity found in Texas Local Government Code Section 271.152 and how that waiver might be affected by an assignment of contractual rights. This short paper discusses that opinion and ways to preserve sovereign immunity. Read more.

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

Infrastructure: RQ-0923-GA; Whether the Eagle Pass Independent School District is subject to a municipal ordinance that requires the district to expend funds for certain kinds of infrastructure.  TML and TCAA argued that the attorney general has previously concluded that development regulations and fees imposed by cities on school districts are permissible.

Recent Federal 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. These case analyses are reprinted with permission from the International Municipal Lawyers Association.

Governmental Immunity-Tort: Maria Alejandro Reyes v. City of Laredo, No. 09-1007 (Tex. Dec. 3, 2010) (per curiam). Plaintiff brought a wrongful death action against the City of Laredo ("City") arising from the death of her fourteen-year-old daughter, who drowned when the van in which she was riding was swept away in flash flood waters after a creek overflowed during a torrential rainstorm. The City asserted governmental immunity and moved to dismiss for want of jurisdiction. Plaintiff claimed the City waived its immunity because the condition was a special or premise defect and the City failed to warn of the condition. The trial court denied the City's motion to dismiss and the City appealed.

The court of appeals held that a rain-flooded street is not a special defect. Thus, under section 101.022 of the Texas Tort Claims Act, the City had no duty to warn motorists of flooding on the road unless it actually knew of the flooding. TEX. CIV. PRAC. & REM. CODE § 101.022. The court of appeals held that the evidence supported an inference that the City had actual knowledge of the flooded crossing before the incident. Specifically, the Plaintiff had presented evidence in the form of an affidavit from a neighbor who called 911 several times the evening of the accident to advise the police of the rising water. The court of appeals affirmed the trial court's denial of the City's plea to the jurisdiction.

Section 101.022 of the Texas Tort Claims Act states:

[i]f a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

TEX. CIV. PRAC. & REM. CODE § 101.022. If someone is injured due to a "defect" in a street, the person must prove that the city knew of the dangerous condition. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). The issues in this case are whether: (1) the road condition constituted a special defect; and (2) the city knew of the dangerous condition of the street in question.

The Supreme Court of Texas, comparing the storm-flooded street to the icy bridge in State Dep't of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784 (Tex. 1993) (per curiam), agreed that a rain-flooded street is not a special defect. However, the Court disagreed with, and reversed, the court of appeals' finding regarding the City's actual knowledge of the flooded crossing. The Court, citing City of Dallas v. Thompson, 210 S.W.3d 601 (Tex. 2006) (per curiam), held that "[t]he City knew that the crossing had flooded before during heavy rains, but 'the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time.'" The Court found this case to be almost identical to City of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 2008) (per curiam) and rendered judgment in favor of the City.

Environmental: Southern Crushed Concrete, LLC, v. City of Houston, No. 14-09-00873-CV (Tex. App.—Houston [14th Dist.] Nov. 17, 2010). In this case, the Southern Crushed Concrete company (“Southern”) asserted that the ordinance enacted by the City of Houston (“City”) was both preempted by state law and that the City violated state law by not limiting its consideration in issuing a land use permit to those laws and regulations in effect at the time that Southern applied for a concrete crushing permit from the Texas Commission on Environmental Quality (TCEQ).  Both Southern and the City cross-filed for summary judgment, which the trial court granted to the City.  The court in this case upheld that ruling.

On the issue of preemption, Southern argued that the city’s ordinance, which was more stringent than state rules in both the distance it required between a concrete-crushing plant and certain land uses (schools, churches, etc.) and the manner in which that distance was measured, preempted the state’s Clean Air Act (“the Act”).  Tex. Health & Safety Code ch. 382.  The court disagreed, stating that the powers of a home-rule city such as Houston “may be limited by the constitution, the general law, or by the city’s charter, but any such limitation must be either express or implied with unmistakable clarity from the provisions of the law, charter, or statute.”  The court also held that where a state law and city ordinance may be at all reasonably construed so that both may be enforced, it should be.  The Act requires only that a city ordinance “must be consistent with [the Clean Air Act] and the [TCEQ]’s rules and orders and may not make unlawful a condition or act approved or authorized under [the Clean Air Act] or [TCEQ]’s rules or orders.” Tex. Health & Safety Code § 382.113.  Thus, the ordinance is not expressly preempted, and its preemption would only be implied with “unmistakable clarity” if the ordinance violates one of the Act’s two restrictions.

The court first addressed the issue of whether the ordinance was consistent with the Act.  The court held that when the legislature has stated the purpose of a state law and specified how to be compliant with it, a local ordinance may not impose different requirements without becoming inconsistent with the state statute.  However, in this instance, the court examined the legislative history and found that the legislature had passed the Act in order to protect air quality, whereas the City had enacted its distance regulations in order to protect land use and property values.  The court held that this difference in purpose kept both the City’s extended distance requirement and its differing measurement requirement from being inconsistent with the Act, and thus the ordinance was not preempted on those grounds.

The court then examined whether the ordinance prohibited an act approved or authorized under the Act or the TCEQ’s rules.  The court found that state law does not authorize a concrete crushing plant to operate more than 440 feet from a school or church, but rather prohibits it within that distance.  Thus, the court held that within the distance from a concrete-crushing plant governed by both the state and the City’s ordinance, the regulations were consistent.  In the area where the City’s ordinance applied, but state rules and laws did not, there could be no conflict. 

Southern also alleged that the City’s enforcement of its ordinance violated the uniformity-of-requirements provision found in Section 245.002.  Tex Loc. Gov’t Code § 245.002. This statute requires that all permits for a project be considered under the same rules, regulations, orders, and effective dates in effect at the time the original permit for the project was issued.  That would apply in this case, as the original permit from the TCEQ to Southern was issued in 2003 and the City’s ordinance was not enacted until 2007.  However, the statute has a specific exception for certain cases where a city ordinance controlling certain land use issues is enacted in a city that has no zoning.  Thus, as the City does not have zoning, the court held that the uniformity-of-requirements provision did not apply to the ordinance in this case.

The court upheld the trial court on all issues and affirmed the trial court’s judgment for the City.

Governmental Immunity-Tort: City of Dallas v. Lacey Celeste Gatlin, et al., No. 05-09-01425-CV (Tex. App.—Dallas Dec. 6, 2010). The city’s governmental immunity is not waived by Texas Labor Code Section 408.001 or Texas Constitution Article XVI, Section 26, and there is no independent cause of action for exemplary damages under the Texas Constitution.  Thus, the city’s immunity was not waived in this workers’ compensation death case.

Real Property: Wind Mountain Ranch, LLC, v. City of Temple, No. 09-0026 (Tex. Dec. 3, 2010) (per curiam). Section 16.037 of the Texas Civil Practices and Remedies Code does not require a bankruptcy order to be recorded and therefore a bankruptcy order can extend a note’s maturity date without being recorded. 

Sexually Oriented Business: 8100 North Freeway LTD, v. City of Houston, No. 14-09-00220-CV (Tex. App.—Houston [14th Dist.] Dec. 2, 2010). The trial court’s temporary injunction was appropriate in this case because the trial court’s action was not arbitrary and did not exceed the bounds of reasonableness.  The court of appeals reviewed only the appropriateness of the temporary injunction and left review of the merits of the underlying case to the trial court. 

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-0827 (Property Tax): Concludes that whether property is taxable involves fact issues that are inappropriate to the attorney general opinion process. Moreover, the initial determination about eligibility of tax exemptions rests with the chief appraiser. The attorney general thus did not address the specific questions. The attorney general also concluded that a maintenance hangar intended for the safe and efficient operation of a municipal airport constitutes a public transportation facility under Section 25.07 of the Tax Code.

Opinion No. GA-0826 (Conflict of Interest): Concludes that, generally, a city is not a "business entity" for purposes of the conflict of interest provisions of chapter 171 of the Texas Local Government Code. The self-employment aspect of the Texas common-law incompatibility doctrine does not apply to preclude a person from serving simultaneously in two positions when neither position supervises the other.

Opinion No. GA-0818 (Police Personnel File): Concludes that whether a civilian advisory committee may review information maintained in a police department personnel file under Texas Local Government Code section 143.089(g) will depend on specific facts establishing the committee as part of the department and limiting the committee's use of the files to department purposes only.

Opinion No. GA-0819 (Economic Development Corporation): Concluded that it is for the board of directors of a development corporation to determine, in the first instance, whether a project or expenditure is authorized under the Development Corporation Act.

Opinion No. GA-0821 (Impact Fees): Concludes that Local Government Code chapter 395 does not give political subdivisions or governmental entities, other than school districts in some instances, the discretion to not pay impact fees as required under the chapter.

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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