Register now for the 2008 Riley Fletcher Basic Municipal Law Seminar to be held in Arlington: The Ninth Annual Riley Fletcher Basic Municipal Law Seminar will be held at the Arlington Convention Center 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 is limited to 96 attendees, so register now! Go to www.texascityattorneys.org for information.

TCAA South Padre Conference to be held on June 11-13, 2008: The first freeze of winter has arrived in many parts of Texas, but Texas City Attorneys Association (TCAA) members should already be looking forward to fun in the sun in 2008! Planning has already commenced for next year’s South Padre Conference, which will be held on June 11-13, 2008, and TCAA is always looking for speakers. If you would like to volunteer your time and talents, please submit your ideas by e-mail to Scott Houston at shouston@tml.org by December 28, 2007. Hotel and registration information for the conference will be available early next year.

TCAA Awards: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas:

• 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.
• The Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney.

For more information on these awards, please go to www.texascityattorneys.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 and IMLA Partner to Provide Innovative Small Cities Membership Benefit: TCAA is pleased to announce a new partnership with the International Municipal Lawyers Association (IMLA). The partnership is designed to benefit TCAA members who represent cities below 2,500 in population. Under the program, TCAA will pay for those cities under 2,500 in population to be limited members of IMLA. Specifically, TCAA will pay $50 on your behalf, which will entitle you to the following:

• A subscription to IMLA’s outstanding Municipal Lawyer magazine
• A subscription to IML@ NEWS (IMLA’s informative e-newsletter)
• Discounted registration for all IMLA conferences and seminars

These benefits alone are worth their weight in gold to the municipal lawyer! And as a TCAA member, you’ll get them absolutely free! While TCAA membership is held by individuals, IMLA membership is by city. As such, by accepting the offer, you will be consenting to your city’s membership in IMLA. However, IMLA's communications will be sent directly to you based on the contact information that you provide.

Starting with TCAA membership renewals in 2008, you will be able to simply check a box to secure your limited IMLA membership. To take advantage of this TCAA member benefit immediately, please e-mail the following information with “IMLA Membership” in the subject line to Tiffany Ducummon at tiffany@tml.org:

• Your Name
• City (or Cities) Represented
• Your Address
• Your E-mail Address
• Your Phone and Fax Numbers

On behalf of TCAA and IMLA, we hope that you’ll take advantage of this exciting new program! Please contact Scott Houston, TCAA General Counsel, at 512-231-7400 or shouston@tml.org with questions or comments. For more information on IMLA, please visit www.imla.org.

Municipal Attorney Job Openings:The attorney general’s intergovernmental relations division is looking for a county affairs attorney (position filled). If you are interested, please go to http://www.oag.state.tx.us/agency/jobpost.shtml. For the most recent Texas Municipal League classifieds postings, please click here.

Contract City Attorneys Internal Revenue Service Dispute: Earlier this year, TML and TCAA filed a letter in an Internal Revenue Service (IRS) appeal by David Brown, the contract city attorney of Henderson, Texas. The International Municipal Lawyers Association also prepared a letter. The IRS had ruled that the city attorney, as a statutorily-created “city office,” was not an independent contractor for purposes of various taxes, but rather a city employee. TML and TCAA explained that city attorneys often have many clients (including the city or cities), and that in such cases they are truly independent contractors (just as they are when hired by any other client). The letter urged the IRS to continue to make determinations of independent contractor status based on the tests in place, and to remove from its analysis of such cases as a determining factor whether there is a statutorily created office of “city attorney" in Texas state law. Last week, the IRS sent a letter to Mr. Brown stating that “[b]ased on the hazards of litigation, [IRS] Appeals settled the case by recommending to the Government that it concede the issue in full.” Mr. Brown’s hard-fought win may be a mixed blessing. While the hard work and determination of Mr. Brown and the City of Henderson led them to ultimately prevail, the letter does not appear to set any precedent for future IRS actions. As such, contract city attorneys should remain aware of the issue.

Contingency Fee Contracts Must be Reviewed by Comptroller, Laura Mueller, Legal Counsel, Texas Municipal League: Texas Government Code Section 403.0305 (enacted by House Bill 3560, effective September 1, 2007) requires a city to present any proposed contingency fee contract to the Texas comptroller’s office for approval before the city can enter into the contract. Contingency fee contracts are defined as legal services contracts where the payment amount from the city to the attorney or law firm is based in whole or in part on the outcome of the legal matter at issue. Read more.

Billboards: TML recently submitted a letter to John Campbell, Director of the Right of Way Division of the Texas Department of Transportation (TxDOT), regarding the agency’s proposed rules governing electronic billboards on state highways. The proposed rules appear to give cities control over whether electronic billboards may be placed within their jurisdiction, but the rules are not entirely clear. TML asked the agency to clarify the rules so that, before a billboard may be upgraded to an electronic billboard, the owner must demonstrate: (1) the original sign was legally conforming under city ordinance; and (2) the sign owner acquired a new permit or permission from the city for the sign to become an electronic sign. A hearing was held on December 6, 2007, and the adoption of the rules is pending.

Political Advertising: TML argued on behalf of Texas cities to the Texas Ethics Commission that proposed agency rules setting a "bright-line" test for prohibited political advertising based on the number of photographs of and personal references to city officials in city newsletters were unnecessary and potentially confusing in light of the simple test in Election Code Section 255.003 that prohibits advocating a position for elections on measures. The commission adopted the rules as proposed on December 11, 2007.

Public Information Act: City of Dallas v. Gregg Abbott, No. 07-0931 in the Texas Supreme Court. TML and TCAA joined a brief of the Texas Association of School Board’s Legal Assistance Fund and argued that the attorney-client privilege is a compelling reason for withholding information under the Public Information Act, even when a governmental body misses the ten-day deadline to request an attorney general opinion. The brief was filed on December 13, 2007, and a decision on the petition for review is pending.

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

Whistleblower: Montgomery County v. David Park, No. 05-1023 (Tex. Nov. 30, 2007). In this case, the Supreme Court of Texas held that simply removing unpaid duties from an employee does not constitute an actionable, adverse personnel action under the Texas Whistleblower Act. The county removed certain unpaid duties from a sheriff’s deputy for alleged political reasons. The deputy brought a whistleblower claim, and the Court was tasked with determining whether the county’s actions constituted an “adverse personnel action.” The Court, holding for the county, adopted the test from the United States Supreme Court, which holds that the action must be likely to “dissuade a reasonable, similarly situated worker from making a report under the Act.”

Takings: Rischon Dev. Corp. v. City of Keller, No. 2-06-103-CV (Tex. App.—Fort Worth Nov. 29, 2007). Rischon argued that the City of Keller committed an unlawful taking under the Texas Constitution by imposing certain requirements on its planned residential development. The city argued that Rischon consented to all of the requirements in a development agreement and therefore there was no taking. After a bench trial, the trial court rendered a take-nothing judgment on Rischon’s claims against the city. The court of appeals affirmed the trial court’s judgment against the development corporation because the development corporation proposed, agreed to, or adopted without objection all of the requirements of which it complained.

Collective Bargaining: Internat’l Ass’n of Fire Fighters Local 624 v. City of San Antonio, No. 04-06-00506-CV (Tex. App.—San Antonio Nov. 21, 2007). The fire fighters’ association sued the City of San Antonio for appointing a fire fighter and union member to its collective bargaining negotiation team. The association argued that the intent of Local Government Code Chapter 174 as a whole prohibits a city from appointing a union member to its own negotiating team. The trial court held for the city. The court of appeals held that appointing a union member and fire fighter to the city’s negotiation team did not violate any provision of Chapter 174 of the Local Government Code, and therefore denied relief to the association.

Civil Procedure: Mitchell v. Berry, No. 05-06-01328-CV (Tex. App.—Dallas Nov. 20, 2007). Mitchell sued the City of Dallas and Berry, a code compliance officer for the city, for towing Mitchell’s 1952 pickup truck. Mitchell sought a temporary restraining order to stop the city from selling the truck and cash damages from the city and Berry. The trial court denied as moot the request for temporary restraining order because the truck had already been sold, and dismissed all of Mitchell’s other claims without clarifying the reason for the dismissal. The court of appeals affirmed the dismissal on a variety of grounds including insufficient evidence, lack of preservation of error, and other procedural problems.

Civil Service: City of Round Rock v. Whiteaker, No. 03-07-00009-CV (Tex. App.—Austin 2007). The court of appeals withdrew its September 14, 2007, opinion and substituted the following in its place. Williams sued the city for civil service violations after the city bypassed him on the firefighter promotion eligibility list. The city filed a plea to the jurisdiction on immunity issues. The district court denied the city’s plea to the jurisdiction. The court of appeals affirmed the district court’s denial of the city’s plea to the jurisdiction, holding that under City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007) and other recent Supreme Court of Texas opinions regarding immunity, Whiteaker’s claims for damages or back pay are barred by governmental immunity, but his claims for prospective relief under Chapter 143 were not barred. The court of appeals also held that Williams should have the ability to replead his claims.

Tort Liability: Rebecca Hernandez v. City of Lubbock and Blake Littlejohn, No. 07-06-0094-CV (Tex. App. –Amarillo, November 27, 2007). Ms. Hernandez sued Blake Littlejohn in his individual capacity for intentional torts committed while Littlejohn was a police officer for the City of Lubbock. Ms. Hernandez also sued the city for negligent supervision of Littlejohn under the Texas Tort Claims Act. Littlejohn filed a motion to dismiss pursuant to Section 101.106(e) of the Tort Claims Act and the city filed a motion for summary judgment. The trial court dismissed the claims against Littlejohn and granted summary judgment in favor of the city. Ms. Hernandez appealed, contending that the trial court erred by granting the motion to dismiss and granting summary judgment for the city. The court of appeals affirmed the judgment for the city and reversed as to the claims against Littlejohn finding that in the absence of a motion to dismiss that is filed by the city, Littlejohn was not entitled to dismissal pursuant to Section 101.106(e).

Takings: Larry Ackers v. City of Lubbock, No. 07-06-0421-CV (Tex. App. –Amarillo, November 29, 2007). Ackers, who was enrolled in a college photography class, took pictures of participants and attendees at a youth basketball game for an assignment requiring him to photograph an entertainment event. Two of the game’s attendees confronted Ackers about photographing the children and called the Lubbock Police Department to report Ackers’ activities. Pursuant to the police department’s policy that required parental permission to be obtained before taking photographs of minors, the department seized Ackers’ film. Ackers sued the City of Lubbock requesting 23 declarations, including: (1) a declaration that the city’s policy was an unconstitutional taking under Article 1, Section 17, of the Texas Constitution; (2) a permanent injunction; and (3) attorney’s fees. The city filed a plea to the jurisdiction asserting that it was immune from suit based on governmental immunity, and the trial court sustained the city’s plea to the jurisdiction. The court of appeals reversed the trial court’s holding and remanded the case for further proceedings, finding that Ackers did not need an express statutory waiver of governmental immunity to seek declaratory relief because he was not requesting monetary damages, but rather seeking a declaration that the city’s policy was unconstitutional.

Collective Bargaining: Elisa Graves v. City of Galveston, No. 14-07-00163-CV (Tex. App.—Houston (14th) December 11, 2007). This case is an appeal from a summary judgment by the trial court in favor of the city, where the trial court held that the termination of a police officer’s employment was lawful. The police officer appealed the ruling, arguing that the city failed to follow and apply provisions of Texas Government Code Chapter 614 when terminating her employment. The city successfully argued at the trial court that the chapter did not apply, as the city met both prongs of the test for exemption from the statute: (1) the city and police officers had a collective bargaining agreement; and (2) the agreement contains provisions relating to the discipline of a police officer as a result of a complaint against the officer. The police officer, in her appeal, argued that the provisions did not apply to her due to her probationary status. The court disagreed, holding that although the agreement did not contain language explicitly outlining disciplinary procedures, it did contain language referring to the Civil Service Act as a guideline. The court of appeals affirmed the judgment of the trial court.

Sovereign Immunity: Saturn Capital Corp. v. City of Houston, No. 14-07-00379-CV (Tex. App.—Houston (14th) December 11, 2007). This case is an appeal from the trial court’s granting of the city’s plea to the jurisdiction based on sovereign immunity. Saturn Capital purchased property at a public tax sale after the property was foreclosed upon for delinquent taxes. The city held a demolition lien on the property that Saturn contended was extinguished as an inferior lien by the tax sale. The prospective buyer of the property refused to complete the sale unless the lien was released by the city. Saturn demanded that the city release the demolition lien, and the city refused to do so until Saturn paid off the lien. Saturn paid the lien rather than lose the sale, and subsequently filed suit against the city to recover the fee. The city held that even if the fee were illegal, it was protected by sovereign immunity because it was paid voluntarily. The court disagreed, holding that the city’s demolition lien was extinguished by the tax auction, making the payment required by the city an illegal fee. The court also held that the fee was not paid voluntarily, as the fee was necessary to complete the sale of the property, without which Saturn faced substantial damage to its business. This business compulsion was enough to establish duress and render the payment involuntary, and thus recoverable by Saturn. The court reversed the trial court’s decision and remanded the case for further proceedings.

Opinion No. GA-0583 (Donations): concludes that the purchase and lease of a generator in conjunction with a county's emergency communications to the public may be permissible under certain provisions of the Texas Disaster Relief Act and the Texas Health and Safety Code. Article III, Section 52, and Article XI, Section 3, of the Texas Constitution prohibit the gratuitous application of public funds for a private purpose. As to the lease of a county generator to a local radio station, neither constitutional provision precludes the lease if the commissioners court determines: (1) the lease has as its predominant purpose the accomplishment of a public, rather than a private, purpose; (2) the county retains sufficient control over the generator to ensure accomplishment of the public purpose and to protect the generator; and (3) the public receives a return benefit.

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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